TheAgitator.com
Judge Orders Prior Restraint of Political Speech
Tuesday, February 8th, 2011A judge in Florida has moved beyond merely forbidding the act of jury nullification in his courtroom. He’s also banning advocates from letting anyone know about it.
A court order signed this week prohibits the distribution of pamphlets or leaflets meant to influence jurors outside the Orange and Osceola courthouses.
The administrative order, signed by Chief Judge Belvin Perry on Monday, has sparked a fresh free-speech debate that could lead to legal challenges, questioning whether the order amounts to a “prior restraint” or a form of censorship.
The issue stems from representatives of the national nonprofit organization Fully Informed Jury Association distributing what they call jury “education” information outside the Orange County Courthouse.
The documents, aimed at sitting or potential jurors, advised that jury members may vote their conscience. The pamphlets also indicate members cannot be forced to obey a “juror’s oath” and that individuals have the right to “hang” a jury if they do not agree with others on the panel…
That order says a “restriction upon expressive conduct and the dissemination of leaflets and other materials containing written information tending to influence summoned jurors as they enter the courthouse is necessary to serve the state’s compelling interest in protecting the integrity of the jury system.”
Perry’s order notes that one judge in the Ninth Circuit covering Orange and Osceola determined that a jury panel had been “tampered with” after discovering members had the leaflets “containing information attempting to influence the jury.”
Roger Roots, an attorney and member of FIJA’s advisory board, said the nonprofit is actively seeking legal representation in Florida to see whether a challenge to Perry’s order can or should be mounted.
“Chief Judge Perry’s order is what is known as prior restraint — one of the most oppressive forms of censorship,” Roots said in a statement sent to the Orlando Sentinel on Thursday. “The fact that the courthouse is an important public building where one would expect people to be free to advocate and speak about matters of the public interest makes Judge Perry’s order especially suspect.”
To the State, the Constitution is not a suicide pact. Defense of sovereignty has priority over civil rights.
Freedom is not just an illusion in America, it is a mass delusion. Where the State is, freedom cannot be.
That order says a “restriction upon expressive conduct and the dissemination of leaflets and other materials containing written information tending to influence summoned jurors as they enter the courthouse is necessary to serve the state’s compelling interest in protecting the integrity of the jury system.”
Translation: We need to keep the game rigged in our favor, Justice be damned.
If there’s gonna be any influencing of juries, the state wants to be the one doing it.
“[The Order] says that if deputies find people on the courthouse grounds engaging in the distribution of information described, they are to provide a copy of the order and instruct the individuals to “cease and desist immediately.”
That is hardly prior restraint. It’s well-established that judges can restrict activities/rights of jurors and those who attempt to influence jurors. That is as it should be. You can’t come onto courthouse grounds and hand out documents telling jurors that they should acquit/convict someone. If you are empaneled in a jury, you can’t fire up the google and do your own research or blog daily about what a putz the public defender is. No 1st Amd. issues there at all.
Of course, if the judge or his minions try to enforce the orders _off_ of courthouse grounds, that could have 1st Amd. implications. But even then, if it can be shown that the pamphleteer was attempting to get his views into the hands of jurors specifically – as opposed to the public generally – he could still be tampering.
It will be interesting to see how this ends, but I think we already know. They will use lofty rhetoric like “protecting the integrity of the American jury system”, etc, etc, but in the end it’s about the government’s own interpretation of its power.
Cynical is right. Government is an organism unto itself and will suppress any perceived threat. And the populace obediently lines up to be suppressed.
“An idea so dangerous… we can’t let the serfs know about it.
Not if the Prison-Industrial Plantation to which we are beholden
is to endure.”
Cute idea, but almost always backfires.
Justice aint blind but let’s put blinders on the jurors, next best thing.
Any real surprise that it came out of Florida?
I notice the judge missed the 2nd part of what the government has to do in order to restrict free speech. He got the part where it’s “necessary to achieve a compelling government interest”. What’s missing is that there must be no other less-restrictive means to enable the government to achieve the same goal.
T1, tampering is trying to affect a jury or potential jury on a specific case. Not on their rights as jurors in general. This also affects pamphleteering to potential jurors who aren’t empaneled on any case, and also to non-jurors.
Nullification is BS. If you get asked whether you can apply the law as given to you and you then take an oath to that effect, you are a scumbag if you then go back on your word. I care about unjust laws deeply, but when you’re asking citizens to infiltrate juries under false pretenses, you’re using unjust means, at best.
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Thanks Dave, and t1 speaks the truth too. The real test would be to shut down FIJA in general, not just on the courthouse steps.
But informing a juror they have the option of nullifying is not the same as urging them to nullify.
Maybe FIJA should distribute their pamphlets on Election Day at polling places and every day at the DMV and wherever voter registration drives occur. That’s where the majority of potential jurors are culled from. Would the State dare prohibit that?
“Where the State is, freedom cannot be.”
And we all know how much better things are in Somalia.
[...] A judge orders that leaflets informing potential jurors of their rights be banned from the courthous… [...]
Dave – Working to reform your byzantine selection system for juries, which heavily favours those with better lawyers, would seem to be a better use of their time…
Here’s a question though: Lets say the literature distributed contained false statements, and/or contained information about a case before the court. Should there be any remedy?
There’s a State in Somalia too, Bob. But your point is well-taken. Freedom doesn’t really exist in human society in general, only between true friends. The mistake us freedom-lovers make is in trying to apply the concept broadly across society, which makes us hopeless idealists. Oh well, I’m no good at the force game, so I’ll go on bitching about people who are good at it.
If they were trying to influence a specific trial or jury, I can see why this order would be ok for court property, especially if the jury is seated.
However, since everyone in the county of voting age is a potential juror at any given time, prohibiting information to be distributed to potential jurors on public property is most definitely a restriction of free speech, IMHO.
Andrew S. – The only facts are what are in the excerpt and it seems to me that the court is barring this conduct on courthouse grounds and the implication is that the pamphleteer is attempting to reach jurors. (I mean if his project is to educate jurors about their rights, I would think that he would want to target them and not people who just show up at the courthouse to pay their taxes or get married or something.) And this is easier than it may seem. Many courthouses call jurors at set times each week and some I know even have them enter through a specific side entrance so they don’t clog the front entrance b/c a couple hundred jurors are called at a time. Don’t know if that is the case here.)
I couldn’t get at the pamphlet on the FIJA website, but there is another site (http://www.lizmichael.com/rulebook.html) that I think has some excerpts. There’s a lot of crazy there, but this is an interesting thought to plant in the heads of jurors as they enter a courthouse:
“Any JUROR can, with impunity, choose to disregard the instructions of any judge or attorney in rendering his vote. …
YOU ARE ABOVE THE LAW!”
More from the “rulebook” (I think). Here is their take on the 14th Amendment:
“XIV. Citizenship and status defined, privilege of 2nd, 3rd, or whatever status of citizenship one selects for oneself, as opposed to Freeholder with full sovereign rights: apportionment of representatives; who is prohibited from holding office; public debt.
CAUTION: There is serious doubt as to the legality of this amendment because of the manner of ratificatin [sic] which was highly suspect. At least 10 States were held by force of arms until the proper authorities agreed to vote for this amendment. An excellent overview of this was written by the Utah Supreme Court – 439 Pacific Reporter 2nd Series pgs 266-276, and for a more detailed account of how the 14th amendment was forced upon the Nation see articles in 11 S.C.L.Q. 484 and 28 Tul. L. Rev. 22, took effect July 28th, 1868.”
For handy reference they also reproduce the 10 Commandments and some bullet points re the communist manifesto.
What’s the judge’s stance on hats?
Talk about JN and you get thrown in jail immediately. You might win the actual court case 4 years later.
If you get asked whether you can apply the law as given to you and you then take an oath to that effect, you are a scumbag if you then go back on your word. I care about unjust laws deeply, but when you’re asking citizens to infiltrate juries under false pretenses, you’re using unjust means, at best.
So you’d have convicted Richard Paey (look him up if you aren’t familiar) of felony drug distribution, knowing that he was only treating his own pain, and that your conviction would result in a life sentence? The laws says if he was in possession of over a fixed amount of the drug, you have to convict.
Would you have convicted a black man for marrying or having sex with a white woman in the Jim Crow south? For desegregating a lunch counter?
Would you have convicted a cancer patient on marijuana charges if they had a doctor who insisted the drug helped the patient with chemo?
But even then, if it can be shown that the pamphleteer was attempting to get his views into the hands of jurors specifically – as opposed to the public generally – he could still be tampering.
That’s a pretty scary prospect. What if I write an op-ed about nullification in a newspaper where there’s a big trial involving a doctor being charged for over-prescribing painkillers? What if I write a column encouraging anyone who is ever empaneled on a jury in a drug crime to nullify? What if I’m on my own property, which shares a sidewalk with the courthouse, and I try to talk with people about nullification as they walk to to the courthouse?
Irving,
That depends on where you are. The Oregon Constitution, for example, protects jury nullification (in article 1 section 16):
“In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial, as in civil cases.”
The jury has the right to determine the law and is not required to accept the law “as given” by the court.
“Would you have convicted a black man for marrying or having sex with a white woman in the Jim Crow south? For desegregating a lunch counter?”
Well since the FIJA pamphlet informs me that the 14th amendment is suspect and that jurors can disregard any laws they want to anyway, I guess a juror would certainly have the “right” to convict a negro for such an offense.
“What if I write an op-ed about nullification in a newspaper where there’s a big trial involving a doctor being charged for over-prescribing painkillers?”
In a high-profile trial, a judge will often either sequester the jurors and/or instruct them not to watch any news or read any newspapers for this very reason. I guess that is the solution that has been worked out to protect 1st Amd rights and the integrity of the jury process.
‘Any real surprise that it came out of Florida?’
nope.
this article reads like a vonnegut story- ‘The Handicapper General is enforcing the 212th amendment, requiring juries to give defendants equal treatment under the law…’
I know I butchered it, but the absurdity fits.
t1- here’s a good link on nullification…
http://www.law.umkc.edu/faculty/projects/ftrials/zenger/nullification.html
Oh, yes, please, let’s make this ALL about Florida. Because we all know that judges in the other 49 states would never DREAM of doing something like this.
#26- I’m sure there are judges throughout the country who’d do this- BUT, along with the Barney Brown story, Florida’s at the top of the shit heap today for agitator stories…
Radley@21 – I’d refuse to take part to a system which put the demands the American jury system does, by being quite clear as to how fair I thought it was.
The UK system simply asks if you can give both sides a fair hearing. I’ve never been called for jury duty, but there are very few cases I couldn’t do that for (And jury members being excluded is uncommon).
Just on the legal analysis side, this is probably a valid TPM restriction, given that, based on the media reports:
(1) the government can assert an important governmental interest in maintaining an impartial jury pool and impanneling impartial juries (pro-nullification folks always seem to assume that it only cuts both ways, but what’s to stop a jury from deciding that the defendant is guilty of *something* and convicting in the face of insufficient evidence? The arguments go both ways: why should the jury have to follow the law *at all* if they can otherwise disregard it when it suits them?);
(2) the order applies to any attempts to influence potential jurors, not just the ones on nullification;
(3) the order is narrowly tailored, applying only to the courthouse and its immediate environs, and presumably only during hours when court is in session (but maybe not, this is a potential avenue of attack if it’s 24/7); and
(4) the pamphleteers are left open ample means for communicating their message: virtually any other method is okay. Billboards, TV commercials, blogs, direct mail, whatever.
I don’t think that a legal challenge to the order would be successful unless the order is significantly broader than indicated in the news stories. If anyone has a link or copy of the order they can link to, I’d appreciate it.
I don’t think Radley’s hypothetical is instructive, since, based on the media reports, articles in the paper would not be covered by the order and the attempt to conflate the property rights issue with the 1A issue is not helpful (it’s a sufficient difference to the case on point that it’s easily distinguished).
START: #1 @ February 8th, 2011 at 5:31 pm points out a problem he considers endemic to government.
STOP: #11 @ February 8th, 2011 at 5:54 pm pulls out the old (and weak) claim that Somalia doesn’t have a government and implies that (strong claim) it sucks there.
I’d say 23 minutes is pretty close to a record on this board. Of course, on the more partisan we-must-defend-the-state(-when-our-team-is-in-power) boards, the Somalia response is so knee-jerk that one will often see it in less than a minute.
BTW: I don’t advocate the view the zero government is the optimum level. However, Somalia is a barely industrialized country with no single central government, but lots of people operating under the color of law, collecting taxes, etc. I can’t credit the argument that Somalia really represents a reasonable projection of what anarchy (to be clear: that’s lack of government, not lack of order) would look like in the west.
Given the fact of preliminary hearings, pre-trial activities, conferences in chambers between judges, the prosecution, and the defense – admissibility or inadmissibility of evidence – all pre-jury, how can any juror keep a straight face when the witnesses swear or affirm to tell the ‘truth, the WHOLE truth, and NOTHING BUT the truth?
Whose truth? What truth?
#20 | Radley Balko
A lot of these questions would be addressed during voir dire. I think T1 is saying that lying during voir dire to avoid exclusion from a jury and then nullifying is unethical.
I don’t really care one way or the other. A good prosecutor knows exactly who he/she wants sitting on a jury, and it damn sure ain’t me. They can tell that just by looking at me.
But I do believe that the juror is the individual’s last non-violent line of defense against the State and that the juror has a moral duty to judge the law as well as the man. In that sense, the juror is the ultimate sovereign, at least until the true sovereign eliminates the jury system.
John Jenkins:
You make an interesting argument in 1). I see jury nullification as a limit on the power of the state, but I suppose a jury could take it as an invitation to try someone for a crime he wasn’t charged with (and which may not even be on the books) as well as an invitation to acquit for a crime he may have committed by the definition on the books.
In reality, jury nullification is largely an issue because there are too many laws and too many opportunities for the state to act against citizens. It’s sort of like any issue of how to react to an out-of-control system: many of the approaches are subject to inconsistent results because they aren’t dealing with the root causes.
Honest question: since potential jurors are the vast majority of adult citizens, shouldn’t any prior restraint restriction based on influencing potential jurors be likely to fail the “narrowly tailored” test?
I see the narrowly tailored portion going mostly to where and when. In effect the order forbids the distributing of the pamphlets on the courthouse grounds during courthouse hours with the intent to influence potential jurors. I think that is sufficiently related to the gov’t interest and sufficiently narrow to pass scrutiny.
I understand the arguments in favor of nullification, I just worry about the full implications of those arguments (in reality, juries already convict defendants for being guilty of being defendants, but nullification opens the door to a formal justification for that. To borrow the reductio examples, why is a 1965 conviction of a black man for some trumped up charge in Mississippi not valid if another jury in the same courthouse could have acquitted a different black man of violating a valid law on nullification grounds? If the argument is substantive (one is just, the other not), then you open up a whole different can, permitting “just” but unproven convictions. I think you really have to wrestle with the issues, and I don’t think most people who are proponents of nullification do that.
Also, prong (2) of the TPM test is about whether the restriction is content-based, rather than whether it is narrowly tailored (that’s prong (3)).
So what’s to prevent people leaving stacks of pamphlets in public restrooms and other places clearly out of range of surveillance cameras?
You’re not usually rhetorically dishonest; so I’ll assume I wasn’t clear. Nullification, as advocated by many, is BS because it requires jurors to be dishonest. If the prosecution asks you whether you could vote to convict for possession without proof of intent then you need to say “no,” and probably be struck from the panel. If you’re asked whether you could convict a black man of having sex with a white woman, I would hope you’d say “no.” A more relevant example from current criminal law is whether you could convict based on the testimony of the victim alone. I can’t answer that question “yes;” so I would anticipate being struck. I also simply cannot enforce my state’s drug possession laws (or the federal ones either). Being honest about it can create barriers to prosecution of those crimes even with a relatively small percentage of the population, a much lighter burden than actually changing the law.
People aren’t stuck on criminal juries and then ambushed with instructions requiring them to do unjust things.
Florida is not in the Ninth Circuit. The Ninth Circuit includes Hawaii, Washington, Oregon, California, Arizona, Nevada, and a couple more.
@23,
Well, the jury pretty much did that in the “Mississippi Burning” case. Yes, they kilt them but that’s standard around here so they can go free.
So, it seems to me that voir dire is a violation of the right to a trial of jury by your peers, because its express intent is to ensure that no one even closely resembling your peers (people anything like you) are allowed anywhere near the panel.
I’ll be honest: the entire concept of voir dire makes me want to vomit. It rigs the game in favor of authoritarians, simple as that.
@Irving Washington: If twelve jurors who are aware of all the facts of the case would find that the state-mandated minimum punishment would be excessive, they would have a duty under the Constitution to acquit. If the jurors would find that the police conduct during a search was unreasonable, they have a duty to regard the search as illegitimate and not construe anything from that search in any manner detrimental to the person whose property was searched/seized. Such forms of nullification do not constitute lawlessness, but rather a means for honorable citizens to protect others from the totalitarian anarchists in power.
Note that prosecutors and judges frequently try to block juries from finding out information, like mandatory sentences, that they claim to be “irrelevant”, when the real reason for blocking the information is that the judges and prosecutors know full well that a jury which does its job would regard the information as highly relevant and acquit because of it. Of course, if a judge withholds information which would cause a duty-bound jury to acquit, and as a result of that withholding a defendant is convicted, is the person really convicted by the jury or by the lawless judge?
inb4 somalia needs to be a meme here. Shit is getting t i r e d.
#8 " Irving Washington
You contend there is some duty to be honest when dealing with the state. Do you think your masters feel similarly obligated in their dealings with you?
#40 Supercat
“totalitarian anarchists”
Huh?
I did a double-take at “totalitarian anarchists” as well. On reflection, I can see the point: when the laws are so numerous, so voluminous, so convoluted, and so arbitrarily interpreted, there is effectively no law. There is only the will of those who have the power to enforce their will, and woe betide anyone unfortunate enough to come to their attention.
Like a society run by gangs of thugs.
Yeah, gotta disagree with Irving Washington. When the State asks questions for the purpose of tainting the jury selection process, the prospective juror has a positive duty to “nullify” those questions and to preserve the integrity of the jury process.
Usually, when State actors talk about “preserving the integrity” of something, what they actually mean is preserving their power and authority at the expense of individual rights and justice.
We are under no obligation to play along.
The backlash against jury nullification in this country began around the 1840s. Strangely enough, that was the same era that the United States saw the creation of dedicated law schools and the rise of a professional law class. I have no idea why a group of specialized elitists would consider anyone not having 7 years of school to be to ‘uneducated’ to properly wield the power of nullification. It’s not like elitists ever want to create a rigged system favoring others with the same credentials.
In all seriousness though, the disdain for jury nullification is both a sign and symptom of the rise of the legal class. Trillions of dollars are made and spent in the legal field each year. Most politicians are lawyers. The whole thing is a racket. If you had the unwashed masses out striking down unjust, unreasonable, improperly (as in the common person would be fucked trying to understand it. As are a good bit of lawyers themselves) written laws, how the hell would these people remain so wealthy?
I am heating up the tar right now,somebody get the feathers. It seems that his royal buttness Judge Perry needs a lesson in who he works for. Also have a stash of pitchforks in case things get out of hand.
The “Legal-Industrial Complex”?
What an asshole Judge. We just need to keep saying jury nulification and let juries know they can do it when justified.
I guess if you get thrown in jail for FIJA pamphleteering, they have to admit the FIJA pamphlets into evidence to prove the charge of jury tampering. If you demand a trial by jury, there’s a pretty good chance you’ll either get acquitted or one person on the jury who hangs it. Not that it makes getting a lawyer to mount a legal defense against the state any cheaper…
About 10 days ago I was called for jury duty.
The defendant in the case had five charges pending against him, the *least* serious of which was drug possession.
I get called up before the judge for voir dire, the ADA on one side of me and the defendant’s lawyers on the other side.
During questioning by the judge, I told him that I had a problem with the drug possession charge. I said that I couldn’t in good conscience vote to convict on a drug charge because I believe that drugs should be legal.
“Should be legal?”
“Yes”
“Are you saying this because you believe it or because you want to get out of jury duty?”
“Because I believe it. In all honesty, I couldn’t not think jury nullification.”
At that he raised an eyebrow.
Needless to say, I was dismissed.
I never even got to the part about malum prohibitum vs malum in se…
Rich, I know it is a sacrifice but you did not have to volunteer that. You could have answered truthfully and if they missed it, sat on the jury and actually voted your conscience in that case.
I was on jury duty in a domestic felony destruction case. A bar fly couple got in an argument in a tavern and then he allegedly went home and burned her clothes on the lawn. It ended up settling after a day of testimony and the prosecutor and defense counsel came back to talk to us.
After the case settled, most jurors said both needed alcohol counseling and beyond that the case was a waste of judicial resources. The lawyers said that in fact they worked out a deal for both to go to alcohol counseling. Had it gone to the jury, with the evidence I heard, I almost certainly would have voted to acquit the guy. I figured there was a fifty fifty chance that either he burned the clothes, or she did to frame him. and hell–I am not going to convict anyone for a felony for getting pissed off and damaging property in a domestic fight. That sort of stuff is more suited for a civil case.
But when I went home and told the wife, she said of course he burned the clothes. I asked, “How can you be so sure?” My wife said, “I do not care how much of a lush you are, or how pissed off you are at your husband, no women would burn her own clothes.”
Perry should be impeached, removed from office, disbarred, and then put behind bars. His order is an attack on the civil rights of the people of Florida.
-jcr
Oh, fer shure. How else can the government permanently secure its compelling interest in diversity, except by making race-mixing illegal?
“Influencing the jury” – let’s not forget that (a) there’s two sets of lawyers, and all their witnesses, whose entire purpose is to try and influence the jury, and that (b) chances are at least one set of lawyers and witnesses is trying to deliberately and systematically mislead the jury.
Not that it makes jury tampering a good thing, or to ignore the beneficial effects of rules of evidence, oaths, rebuttals, cross-examination etc. as opposed to sidewalk justice; but on the whole it’s hard to believe that some pamphleteers in a few seconds can out-influence the highly trained hired liars who have the jury at their disposal for hours at a time.
Also, on the theoretical possibility that a nullifying jury could vote to deliberately convict an innocent black guy without sufficient evidence, let me suggest that if the state is worried about that possibility, they could focus their efforts on not putting innocent black guys on trial without evidence, rather than anti-nullification efforts.
I have to live in Florida now, but I was born in Georgia and lived there for some years. It warms my cockles to remember that the Georgia constitution says that the jury is the judge of both the facts and the law, and if they don’t like the law, they can nullify it. Eat yer liver, Patterico!
I don’t think there’s anything stopping them from doing that now, even without nullification.
“If you get asked whether you can apply the law as given to you and you then take an oath to that effect, you are a scumbag if you then go back on your word.”
Deception is not necessarily unjust, anymore than violence is.
An oath given to do evil is not morally binding. Anyone demanding an oath to do evil invites all manner of deception and subterfuge as a fair and proportionate response (violence is also fair and proportionate, if their evil is of the violent sort, but violently attacking a courthouse is generally an ineffective means of acheiving justice).
There a certain amount of incomplete information concerning the activities of the FIJA. They do NOT attempt to make any contact with a person identified as a Juror.
Their volunteers are guided to target the public at large that abound in Federal or State Office Building plaza and sidewalk areas. They are guided to NOT canvass inside of Federal or State Court Buildings.
Many courts around the U.S. identify Jurors with a sticker or a lapel button that says “Juror”, so that those associated with the court system or specific legal cases such as defendants, can avoid any contact or conversation with said sworn jurors.
The FIJA is aware of this common identification, and guides its volunteers accordingly to avoid offering the pamphlets to those so identified.
The FIJA target Federal Buildings and State Office Buildings that usually also house the Courts. In summary,the FIJA volunteers are guided to only target the general public, NOT specific or identified jurors.
[...] Not allowed near the court: A court order signed this week prohibits the distribution of pamphlets or leaflets meant to influence jurors outside the Orange and Osceola courthouses. [...]
Irving Washington – If a German government official in 1944 asked me if I was a Jew and I then lied would that make me a scumbag?
hf @56, good point on the “influencing the jury” non-issue, but the state doesn’t want you “influencing the jury without a license! “Educating” jurors of the law should not be called jury tampering. This is a terrible mistake by the judge who goes on to umbrella the scare tactic with “obstruction of justice” threat. Education and information of the law must remain legal and unrestricted. THAT is the compelling interest in this case.
Instead of issuing a clarifying statement to warn FIJA about the differences between information on JN and obstruction/tampering, the judge bullied thru a court order. He had a tantrum and now wants to show his big dick.
Related is the case of government really liking their monopolies. Their monopoly on violence has been discussed, and this is an example of their desired monopoly on information. Do they really want citizens to know the law? Not really. Uncertainty, fear, ambiguity, and confusion make you a lot easier to control.
I’ve read the comments in support of the judge and, IMO, they contain some real mental gymnastics. Educating people about the law is not jury tampering and is not obstruction of justice.
a) The same, and only, thing that stops them now – the fact that it takes all twelve jurors to agree to convict. Other than that (just like now), nothing prevents it.
b) A Defendant can appeal a conviction, and the appeals court does have the power to overturn the jury verdict. The state cannot appeal an acquittal. I believe in most states there is even precedent for the trial judge in a case to overturn a jury conviction as “contrary to the evidence,” while a jury’s verdict to acquit is sacrosanct and inviolable.
The system is supposed to be biased in favour of the accused – a bias that has been slowly chipped away over the last 200+ years. Jury nullification is part of that, and all prospective jurors should be taught about it. Heck, given it’s importance in our nation’s history, it should be taught in every high school civics class.
@Rich: //I said that I couldn’t in good conscience vote to convict on a drug charge because I believe that drugs should be legal.//
Are there no circumstances under which you might feel that a person accused of a drug charge actually deserved to be punished for such behavior, e.g. if the evidence clearly showed that someone who was selling pot knew it to be laced with PCP, but that the person’s customers were unaware of that?
If there is some combination of evidence which would cause you to issue a conviction, then you should in good conscience be able to say that you will convict if you find that the evidence justifies conviction. You may be much more demanding than most jurors when it comes to deciding what evidence would justify conviction, but provided that there is at least some conceivable combination of evidence that would satisfy you, you could truthfully say that you’d convict if the evidence justified it.
#43: cApitalist; #44: Gordon
I coined the term “totalitarian anarchists” to refer to a system in which government officials try to exercise absolute power for themselves, but flout the laws which justify their existence. It’s not quite feudalism or despotism, since feudal lords and despots had under their governments the legitimate authority to do what they wanted. By contrast, the actions of government officials who flout the Constitution are illegitimate, and must be opposed if lawful government is to reign supreme.
What should someone who seeks unbridled power be called if not a totalitarian? What should someone who opposes lawful government be called if not an anarchist?
I’m unaware of the term “totalitarian anarchist” having caught on anyplace, but I hope it can wake up some “law-and-order” types to the fact that many “tough on crime” government officials are in fact opposed to lawful government, and that those who favor lawful government should oppose such officials.
#66 supercat
I see what your getting at, and I agree that many in power thumb their noses at the laws they’ve sworn to protect. However, as an anarchist, I can tell you that I don’t oppose “lawful government.” Lawful government is an oxymoron, as by even existing government violates natural law. I oppose government as such. I don’t think politicians who disregard their own laws can or would say the same. But, I like where your head’s at. How do you feel about old standbys like tyrant, crook, and murderer?
#52 Joe
“Rich, I know it is a sacrifice but you did not have to volunteer that. You could have answered truthfully and if they missed it, sat on the jury and actually voted your conscience in that case.”
Actually it wasn’t voluntary.
The jury pool was brought into the courtroom and asked a series of questions.
Most of these were along the lines of “Do you know any of the parties involved in the case?”. The standard sort of stuff that you would expect.
But one of the questions was something to the effect of “Do you have a problem with any of the charges that have been brought against the defendant?”.
Bear in mind that this was after the jury pool had been sworn in, so perjury is a possibility at that point.
#65 supercat
“If there is some combination of evidence which would cause you to issue a conviction, then you should in good conscience be able to say that you will convict if you find that the evidence justifies conviction. You may be much more demanding than most jurors when it comes to deciding what evidence would justify conviction, but provided that there is at least some conceivable combination of evidence that would satisfy you, you could truthfully say that you’d convict if the evidence justified it.”
I never thought about it that way. I’ll have to keep it in mind for the next time.
In this particular case though it sounded as if it was just for personal use.
Suppression of free speech is abominable. This decision should not stand.
That said, we execute people in this country. While I have a great deal of respect for libertarians and their views, until we can end that abomination of our “justice” system, very few other freedoms are important. As long as the state has the right to kill us with the assent of our fellow citizens, all other freedoms are meaningless.
@#39 M. Steve: There’s no Federal right to a jury of peers in the US that I’m aware of. That’s from the Magna Carta. Perhaps in your State Constitution? But weren’t juries exclusively old white men who were property owners back in the early days of the Union?
Those arguing that truth during voir dire is essential and those arguing in favor of jury nullification should recall the Montana case where the potential jurors just said no to a cannabis possession charge. The link is merely the first that came up on the Google, I’ve never heard of this website before. It seems that both sides interests in this argument are not mutually exclusive. I’m not sure I can argue in favor of
http://www.shadyhousepub.com/mpiu/voir-dire-meltdown-in-montana/
“Many of the jurors even told the judge they would not find someone guilty for marijuana possession. One of the jurors asked the prosecutor why the county was wasting time and money prosecuting the case at all. Many of the jurors agreed that such an action is not a crime, and they would not find it to be one.
The jury never was selected. A plea ended the case early. But the judge brought up a good point. Judge Deschamps wondered if ANY jury could ever be selected that would considered simple possession of marijuana to be a crime.”
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(PS the OJ jury wasn’t nullification, not by a longshot. That jury gave Chris Darden & Marcia Clark the verdict they earned. People seem to forget how much stuff we knew that Judge Ito excluded from the jury. But the gloves stunt by Darden was a bush league rookie mistake. By happenstance I was laid up from a bad car accident and got to watch the darn thing “cover to cover.” If you didn’t like Mr. Simpson getting a walk, blame the idiots Clark, Darden, and Ito, not the poor jurors who were trapped for weeks and weeks on end and forced to watch that surreal dog & pony show. They returned the correct verdict based on the evidence they heard.)
#67: cApitalist: Orderly society and commerce are not possible without some form of government. Situations will invariably arise in which person #1 feels that person #2 owes him something which person #2 doesn’t want to pay. If neither person is willing to agree to let the matter be decided by an arbiter the other would trust, how could the matter be resolved fairly without some form of government establishing an official arbiter and providing that such an arbiter’s decisions are binding if EITHER party demands it?
I would not dispute that governments almost invariably grow far beyond the size necessary to secure people’s rights, and instead become a major threat in and of themselves, but that doesn’t change the fact that some form of government is necessary for orderly and productive society.
Supercat, I think the term you want is “anarcho-tyranny.” That’s what Jerry Pournelle calls it, anyway.
#72 supercat:
Thanks again for the discussion.
“Orderly society and commerce are not possible without some form of government.”
I’m not trying to be dickish and ask for some sort of citation or proof, but I don’t think you can just throw this out there as if it were a given. I might grant you that some sort of legal structure is necessary for a complex economy with a lengthy structure of production, but who says the legal system can’t be market based? If you stranded people of diverse talents on an island which would they first barter or form a government complete with a legal structure? My money’s on bartering and I think history backs me up on that one.
“Situations will invariably arise in which person #1 feels that person #2 owes him something which person #2 doesn’t want to pay…”
I agree. These situations will arise. Likely, arbitration provisions would be written into contracts. Additionally, if one group refuses to comply with the arbiters decision, it behooves all those willing to comply to boycott the rouge or dishonest group. An example of a similarly functioning, voluntary, market based legal structure would be the Lex Mercatoria, or merchant courts, of the middle ages.
“… how could the matter be resolved fairly without some form of government establishing an official arbiter and providing that such an arbiter’s decisions are binding if EITHER party demands it?”
In his article Libertarian Anarchism: Responses to 10 Objections (excellent, 1st google result), Roderick Long explains that not only is a “final arbiter” unnecessary, but it doesn’t exist right now. I’ll attempt to summarize. If one is dissatisfied with the state’s decision, he may appeal. If that fails, he may lobby to change to laws. If that fails, he may attempt to change to politicians in charge. If that fails, he may attempt a coup. Things don’t drag out like this because typically both parties accept the decision, and because costs are prohibitive. It simply becomes too expensive to pursue your grievance further. This limitation exists both with and without a state run legal system. I really suggest reading the article as my summary doesn’t do it justice.
#39 | M. Steve | February 8th, 2011 at 8:23 pm
So, it seems to me that voir dire is a violation of the right to a trial of jury by your peers, because its express intent is to ensure that no one even closely resembling your peers (people anything like you) are allowed anywhere near the panel.
I think that it was Vin Suprynowicz who said that “voir dire is latin for jury-tampering.
It funny how some want to justify nullification by heartstrting-tugging scenarios but what of the real life cases of a White jury refusing to convict a White person for violence against Blacks? Or a relatively recent one of a jury refusing to convict a police officer for murder when he blasted through an intersection during a high-speed chase colliding with and killing an innocent driver? Considering most people are Conservative and Libertarians are a minority means it’s easy to stack a jury to uphold a Conservative views.