Morning Links

Wednesday, November 30th, 2011

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60 Responses to “Morning Links”

  1. #1 |  billb | 

    I think the money quote for the nullification case is the last one:

    ‘Mr. Heicklen, …, has asked for a jury trial. Ms. Mermelstein, opposing that demand, cited as one reason Mr. Heicklen’s ardent stance that juries should nullify. He would probably “urge a jury to do so in a case against him,” she wrote. ‘

    That’s crazy. The prosecution is also arguing against his absolute right to a trial by jury!

  2. #2 |  Roho | 

    billb – Yeah, that jumped out at me, too. That’s a really scary stance for the prosecutor to take.

    “We’re concerned that in a trial by a jury of his peers, he will be acquitted. Therefore, we feel he should be denied a jury trial.”

  3. #3 |  Single Acts of Tyranny | 

    We need to get 79-year olds who advocate thought rather than blind compliance and mindless obedience, off the streets because they are a danger to something or other drooled the prosecutor. Juries should do what I tell them to or else I will arrest them she added before goose stepping up the road.

  4. #4 |  Yizmo Gizmo | 

    I called Alan Colmes radio show after Heicklen was arrested.
    Colmes accused me of being Heicklen and then
    when his screener Amy told him it was a real case, he insisted there must
    be something missing from the details, we don’t just lock people
    up for free speech…
    Sorry Alan, we do.

  5. #5 |  Kristen | 

    The schadenfreude on the Sheriff case is so, so delicious. It sustains me.

  6. #6 |  Burgers Allday | 

    Sorry to stray off-topic. I think one problem with the criminal justice system in the US is that it makes it difficult, at least in many situations, to find out you have a warrant. That is probably a good idea for a murder suspect who doesn’t realize that she is a suspect, but it is a terible thing for unpaid parking tickets and other non-violent crimes. Then the person gets pulled over for speeding and, what do you know, they have to spend time in jail. It is like an extra punishment that police get to inflict by not informing people about their minor warrants and then using that to get a free car search (oooops, I meant “inventory”) if the person gets pulled over, or even a free home search if the person makes the mistake of calling the police for help (eg, help with a burglary).

    anyway, a good recent development on this secret warrant problem:

    I hope this catches on.

  7. #7 |  Yizmo Gizmo | 

    “Then the person gets pulled over for speeding and, what do you know, they have to spend time in jail. ”

    Thank you. I got locked up in Boca Raton this way, not driving
    or violating any law but walking down the damn street toward my hotel.
    “Suspicious activity,” the dopey officer called it.
    Florida is the Evil Empire Headquarters of the Secret Warrant.

  8. #8 |  Sean O'Doherty | 

    Thanks for the link to the Russian photos, they’re beautiful.

  9. #9 |  Mark R. | 

    “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without Constitutional protections no matter where it occurred.”

    Yeah, well, this is a democracy, we’re all jurors, so where would the prosecutor permit him to solicit?

    “Hey, look, you can say whatever you like, you just can’t say it to other people.”

  10. #10 |  Comrade Dread | 

    I really wish the government would stop trying to protect us from every possible evil through brute force.

    Look, you want to stop people from using drugs, focus a fraction of the money you spend on interdiction and prohibition towards non-forcible preventative measures (education, PSAs, etc.) and rehabilitation for those who want to quit.

  11. #11 |  Jim Collins | 

    If they convict Heicklen, I’d watch my back Radley. You could be next. :)

  12. #12 |  Nancy Lebovitz | 

    Radley has given us plenty of reason to not trust accusations in drug cases.

    So, might Sullivan be innocent? Should we care?

  13. #13 |  Lynne | 

    Amazing photos of Russia! Thank you for sharing.

  14. #14 |  Whim | 

    Assistant U.S. Attorney Rebecca Mermelstein?


  15. #15 |  CyniCAl | 

    •Federal prosecutor argues in a court brief that advocating jury nullification is a crime, “no matter where it occur[s].”

    May the Streisand Effect take hold in all its glory.

    •Disgraced former “Sheriff of the Year” arrested, now jailed in the building that’s named after him.

    While I admit I don’t know the details of his case, it appears he was convicted of selling amphetamines. While I have about the least sympathy for pigs among all commenters here, and I get the irony of tyranny being done to him after he made a career out of doing tyranny to others, how much schadenfreude can one have for someone victimized by tyrannical drug laws?

    Maybe he’s a libertarian now. Doubt it, but it’s possible. Maybe he’ll join LEAP and donate some of his pension when he gets early release.

  16. #16 |  shg | 

    Heicklen does not have a right to a jury trial in his case as he’s charged with a misdemeanor. Heicklen is a pro se defendant, and has refused to respond to Judge Kimba Wood in court, asserting his right to remain silent. Advisory counsel has been appointed for him, and is doing the best they can to represent him given his refusal to cooperate and multitude of battles he wants to fight simultaneously. He simultaneously is being “advised” by a very large group of people with similar political ideas, all of whom can be identified by their tin foil hats.

    And sadly, the government is dead wrong and will likely win, not because they’re right but because the Julian Heicklen is unwilling or unable to focus on winning the battle.

  17. #17 |  Ian | 

    Anyone who refers to the effects of drugs as, “It gets them nuts” and “People have stabbed themselves on the leg” shouldn’t be deciding anything related to said drugs and who can use them.

  18. #18 |  Jury Nullification and My New Book « Jevlir Caravansary | 

    […] Having just announced the release of my new book, Stories of the Way, I was interested to find a story about jury nullification, or more precisely advocacy of jury nullification today (HT: The Agitator). […]

  19. #19 |  CyniCAl | 

    “No legal system could long survive,” they added, “if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable.”

    The ultimate logical foundation of the modern State is Kant’s categorical imperative, more commonly stated as, “What if everyone did that?”

    I have often written here that if NOT voting could change the system (and it’s the only thing that CAN change the system), then the State would make not voting illegal. The State recognizes the existential threat of mass action and must destroy it with extreme prejudice before it takes hold — self-preservation demands it, and the prime directive of the State is self-preservation.

    I make it a point to subvert the categorical imperative every chance I get. I’ll do whatever the fuck I judge reasonable, thank you very much, and I sincerely hope everyone else follows me. We could use more real change in this insane world.

  20. #20 |  Aresen | 

    @ CyniCAl | November 30th, 2011 at 12:38 pm

    Nah. He’ll just pull a Limbaugh and blame everyone but himself while continuing to advocate tough drug laws.

  21. #21 |  nigmalg | 

    “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State…”

    You don’t have a right to a Jury trial for a misdemeanor?

  22. #22 |  Matt I. | 

    shg is correct.

    You don’t have the right to trial by jury in misdemeanor cases (except in VA & NH).

    You can be jailed for up to six months by a corrupt judge (and also have added penalties tacked on such as license suspensions and fines) and there is quite literally nothing you can do about it. The Supreme Court has ruled that that’s all A-OK.

    And yes, unfortunately Heicklen WILL almost certainly be convicted and sent to jail.

  23. #23 |  Tom | 

    @15 a misdemeanor is still a crime. The 6th amendment should certainly apply: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence”

  24. #24 |  CyniCAl | 

    The effectiveness of civil disobedience as a revolutionary tactic depends on the State prosecuting, or “following through,” with its tyranny. I read an interesting point in the discussions of the Occupy UCDavis pepper-spray incident — from the protestors standpoint, it is preferable for the State to resort to brutality rather than ignore public defiance of the “law” (which it cannot do, as that concedes sovereignty).

    Sadly, Heicklein must resolve himself to suffer the worst the State can muster. Successful civil disobedience is predicated on publicly and enthusiastically enduring the worst abuses of the State, not seeking to avoid abuse or complaining about it when it inevitably happens.

    As for me, like Russell Zisky said in Stripes, “”I just want you guys to know, if we get into any heavy combat, I’ll be right behind you, every step of the way.”


  25. #25 |  CyniCAl | 

    Poor Tom, he still thinks the Constitution means something.

  26. #26 |  Kristen | 

    @11 Nancy

    Should we care?

    I don’t. I’m against prohibition, but in favor of giving the agents of prohibition a taste of their own medicine. As I said, schadenfreude. It’s not just for breakfast anymore.

  27. #27 |  derfel cadarn | 

    I call for an immediate air lift of millions of tons of chewing gum to be dropped on Washington DC and ALL state capitals nation wide. Their obvious inability to add or subtract may be stimulated and they finally come the realization that the jig is up.

  28. #28 |  Brandon | 

    Rebecca Mermelstein is a soulless cunt, and I encourage anyone who is selected to Mr. Heicklen’s jury to vote to acquit because of the appalling stupidity of the laws he is accused of violating. Who’s that at the door?

  29. #29 |  Pablo | 

    SCOTUS has ruled that “all criminal prosecutions” really doesnt mean all criminal prosecutions–just those that are “serious” offenses. If you are facing less than 6 months’ incarceration, a 1000 dollar fine, or a 90 day drivers’ license suspension, these geniuses have decided that is not “serious” thus you have no right to a jury trial. This despite the fact that the meaning of “all” is pretty clear. Just another example of judges pulling stuff out of their asses to reach the desired result.

    Blanton v North Las Vegas, 489 U.S. 538 (1989)

  30. #30 |  nigmalg | 

    LOL wow. Learned something new today.

    “all” doesn’t mean all. SCOTUS just pulled that out of their ass.

  31. #31 |  EH | 

    I’m guessing there weren’t a lot of originalists on the bench when that was decided.

  32. #32 |  CyniCAl | 

    Courtesy of Robert Jackson we know that the Constitution is not a suicide pact. Apparently, if one were entitled to demand a jury trial for “all criminal prosecutions,” that would be the death of the “justice” system, just like having independent thinkers as jury members would also result in the death of the “justice” system.

    It should be obvious to all rational individuals that the authors of the Constitution were complete morons. How they could not have foreseen the expansion of the “justice” system beyond all capacity to handle caseloads is stupefying. It is a damn good thing for us that we have adults in the room to correct their mistakes, especially those adults that don’t believe in amending the Constitution by the procedures laid out by the same morons who wrote it in the first place.

  33. #33 |  Pablo | 

    #32 CyniCAL– exactly–if it is difficult to follow the Constitution that is no excuse for ignoring it. If providing jury trials for all criminal cases is impossible there are ways to deal with that–as you pointed out the Constitution can be amended. Or how about we stop arresting people for consensual acts?

  34. #34 |  nigmalg | 

    “Or how about we stop arresting people for consensual acts?”

    Bingo. The Justice system was never meant to be such a gigantic industry.

  35. #35 |  MacGregory | 

    “Or how about we stop arresting people for consensual acts?”
    Oh come on guys. Think of all the unemployment that would cause. Face it, most of these worthless bastards couldn’t get a job doing anything else.

  36. #36 |  Bergman | 

    If anyone educating a juror about what the law says, in any circumstance, is a crime, and not protected speech under the Constitution, how does the legality of a judge instructing a jury on the law stand up to that test? Especially if the judge gets it wrong?

  37. #37 |  Yizmo Gizmo | 

    “how does the legality of a judge instructing a jury on the law stand up to that test? Especially if the judge gets it wrong?”
    If “they” do it it’s okay, but if “we” do it it’s illegal.
    Kind of like photography. Cops can photograph/video you, but turn the tables
    and presto–it becomes wiretapping.
    Sorry, but living in a “free” society–and all the responsibility that goes with it– we have to make certain inconvenient customs and rules to separate ourselves from tyrannies.

  38. #38 |  plutosdad | 

    I have come around to thinking jury nullification is the ONLY thing juries are actually good for. They are certainly not very good at judging the truth or falsity of a charge, and neither are judges for that matter. Every experiment or study I read on judges and how people judge the truth scares the hell out of me that we use humans to make life or death decisions. BUT, judging whether the law itself is immoral and wrong? Certainly a jury can do that, a judge is probably bound not to.

  39. #39 |  plutosdad | 

    sorry for double post, but near the end what the prosecutor says it’s not a public forum, brought to mind this recent article on how public forums are vanishing:

  40. #40 |  TJ | 

    re Jury Nullification (a great concept)

    “We (prosecutors) don’t want no stinkin” jury trials… heck we might not win under those conditions.”

  41. #41 |  Nancy Lebovitz | 

    Schadenfreude pie.

  42. #42 |  CyniCAl | 

    This may be the most sarcastic thread I’ve read here. It is all just getting to be too much for us. The Constitution has truly reached “holy book” status, to be interpreted any way the high priests see fit to advance the status quo. How can any mature adult advocate a political solution to anything anymore?

    “When I hear a person talking about political solutions, I know I am not listening to to a serious person.” — George Carlin

  43. #43 |  GT | 

    #15 – as the Sullivan case develops, you will discover that it’s about MUCH more than a “respected law enforcer” dealing meth. There will also emerge details of exchanging meth for sex with underage counterparties.

    If these charges were being levelled at a Mundane (you or I or any of the State’s other victims) I would advocate the whole “innocent until proved guilty” schtick… but this cunt is a State goon and has been for his entire life – so if he is ruined by even a FALSE allegation, I’ll just chalk up another win for karma. He has taken a paycheck in exchange for forcing politicians’ whims down the throats of their livestock, so fuck him and his entire DNA stream.

  44. #44 |  CyniCAl | 

    Understood GT, and I completely agree with everything you wrote. In fact, it is one of my often-expressed beliefs here that there are no good cops because they all profit from tax (read: stolen) money. In my original comment, I wasn’t trying to defend the pig, just exploring the multiple levels of irony at work.

  45. #45 |  supercat | 

    I would posit that in most cases of so-called “jury nullification”, the jury is not disregarding the law, but is actually upholding it contrary to the wishes of the judge and prosecutor. According to the law, excessive fines are forbidden, as are cruel and unusual punishments. Further, because it is entirely possible for one criminal acts to be much more heinous than another even if it would merit the same legal description, it is entirely possible that a punishment which would be entirely reasonable for the first criminal act might be grossly excessive for the second. If a jury determines, on the basis of mitigating factors and other particulars of the defendant’s exact criminal actions, that a guilty verdict would result in a sentence that would be excessive given those particulars, the jury would have a *duty* under the law to acquit.

    Further, if a jury determines that e.g. a search or seizure was performed in an unreasonable fashion, the jury has a duty under the law to regard such a search or seizure as having been illegitimate, and to view any evidence obtained from such a search or seizure in such light (generally by accepting any aspects which might be favorable to the defendant, and disregarding any aspects favorable to the prosecution).

    Given that the reasonableness of a punishment or a search may depend upon contested facts, that a meaningful examination of such facts will often require an assessment of witness credibility, and that a right to a jury trial implies a right to have witness credibility assessed by the jury, it follows that the right to a jury trial implies a right to have a jury assess such issues of reasonableness. Otherwise, the state could simply define a crime, “doing something illegal”, for which the punishment could range–at the judge’s discretion–anywhere from a one-penny fine up to execution, let the jury determine whether the defendant did anything at all illegal (in most cases, the answer would be yes), and then have the judge assign a punishment appropriate to the actions claimed by any and all prosecution witnesses, without regard for whether or not the jury found all the claims of those witnesses to be credible.

  46. #46 |  Dave | 

    Retired Washington State Supreme Court Justice William Goodloe wrote an essay on the right of jury nullification, he cited the long history from the trial of William Penn to the recognition by John Jay that jurors have the right to judge the law as well as the facts of the case. link to PDF:

  47. #47 |  croaker | 

    @5 @11 @26 @41

    @35 Leaving them to starve in the gutter is just fine with me.

  48. #48 |  JOR | 

    #27, making them smarter would just make them better at fucking everyone else over.

  49. #49 |  JOR | 

    “The ultimate logical foundation of the modern State is Kant’s categorical imperative, more commonly stated as, “What if everyone did that?””

    I’m not seeing it. If everyone acted like a policeman or tax collector or prosecutor or whatever sort of state functionary, society would collapse very quickly.

  50. #50 |  JOR | 

    #24, Yes, civil disobedience often works best by forcing a confrontation and goading the state/elite into acting brutally. What status quo apologists and internet tough guys waxing sentimental about Martin Luther King Jr. and the civil rights activists’ willingness to ‘face the consequences of their actions’ forget about, however, is at that point, it’s not enough to just suffer the brutality stoically – you need to endure it with disciplined nonviolence, of course, but “whining” to high heaven about the injustice of it all, as eloquently as possible, is important. If you fight back against pig violence and get hurt or killed, it inspires revulsion for you and sympathy for the pigs; if you just keep your mouth shut and shuffle politely off to jail, everyone just forgets about you and if their thoughts turn to you at all they filter neatly through Just World Bias. The other option is to fight back against the pigs and win, though that’s usually just not possible (most movements that have successfully employed nonviolent resistance would have been perfectly happy to use violent means if they had a chance of succeeding using those methods, a fact that anti-pacifist tough guy platitudes fail to appreciate).

  51. #51 |  Windy | 

    Controversial? Try Constitutional.

    But now prosecutors are offering their first detailed explanation for why they charged Mr. Heicklen, arguing in a brief that his “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without Constitutional protections no matter where it occurred.”

    “His speech is not protected by the First Amendment,” prosecutors wrote.

    I beg to differ, the 1st Amendment applies everywhere and anytime under any circumstances.
    “Congress shall make no law abridging the freedom of speech . . .”
    and neither shall prosecutors nor the courts.

    Obviously none of these prosecutors has ever read any of the Founding Father’s writings, and they have especially ignored Thomas Jefferson’s.

  52. #52 |  Windy | 

    “If ‘they’ do it it’s okay, but if ‘we’ do it it’s illegal.
    Kind of like photography. Cops can photograph/video you, but turn the tables
    and presto–it becomes wiretapping.”

    “Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence”

    — U.S. Supreme Court Justice Tom C. Clark – Mapp vs. Ohio

  53. #53 |  Windy | 

    #46 supercat

    I think jurors are not normally apprised of the range of punishments for the “crime” they are judging, so rather than basing nullification on the “punishment being too great for the crime”, perhaps their emphasis should be “this law was specifically created to deal with a certain type of offender and/or a certain type of crime”, if the defendant does not match that certain type of offender or the offense committed by the offender does not match the seriousness of the crime for which the law was created, then the jury should find the defendant “not guilty” (like mission creep, each law eventually reaches a point where it is applied to much less serious a crime; sort of the way domestic violence now applies to a couple yelling at one another, which is really not violent at all, but the cops will come and one or both will go to jail if anyone reports it).

  54. #54 |  Delta | 

    I just finished jury service on a murder trial in Brooklyn this week, so although I was very aware of nullification issues beforehand, I’m even more so right now. Of course, during jury selection, everyone involved (judge, prosecutor, defender) hammers over and over again on “do you promise to follow instructions as law as given by judge; to judge only the facts and not the law?”. If anyone wants to get out of jury duty, then the surest thing is to simply say, “No: I believe in jury nullification” (which I already knew, from prior experience — in this case I was, say, intentionally conservative in my responses).

    In the future, I think my best plan-of-action will be to use voire dire (jury selection) as an opportunity to inform other jury members of their power, in a way that is prohibited to attorneys. Like when questioned say: “No: I would hold it as my responsibility to judge both the facts AND THE LAW, as stipulated by Chief Justice John Jay* in the first-ever Supreme Court trial. Even knowing that the court prohibits informing juries of this power as per Moylan (1969) and Dougherty (1972). With all due respect.” At least in NY, this individual questioning is done out loud with the rest of the jury pool in the box, so it’s an opportunity to make a statement to the rest of the jury prior to getting kicked out.

    (* For additional points in the Brooklyn courthouse you can say: “… in whose honor the street outside and this building are named after”)

    Of course, not only were we not told about possible penalties; we weren’t even told what charges were being pursued (until end of trial?); and researching penalties was of course prohibited.

    Also: The initial witness walked in, first cop on the scene: the shortest, fattest, dumbest, most red-faced, constantly twitching, nervous, sniveling, inaudibly mumbling, 70’s-moustache sporting caricature of a useless cop I’ve ever seen. I almost directly burst out laughing in court when he walked in. Was unable to translate “0500 hours” to “American time” when asked twice by the prosecutor. Second witness: Cop who supposedly found the used firearm, at which point either he or partner immediately dropped it on the floor, shattering it in pieces, for which he can’t remember who did that, and did not include it in any written report. Etc.

    One final kicker: The New York State court system plays a “petit jury orientation” video at the start of your service, narrated by 60 Minutes celebs (Ed Bradley and Diane Sawyer), complete with Monty Python-esque dramatizations of how horrible “olden times in Europe” were. A pivotal point in the video is acclaim for the William Penn trial: “and from that day on, no authority could punish a jury for its decision”. But it sure seems to me like jury behavior as in the Penn trial is now expressly prohibited. Transcript & zipped video here:

  55. #55 |  Delta | 

    … And then after a few weeks fretting about our overly-punitive criminal system, my follow-up nut-punch was this interview with Newt Gingrinch in which he promises to be “much more aggressive about drug policy”, holding up Singapore as a commendable example. (Also: “we need a very aggressive model” towards Cuba: more covert work etc.) Yet this is compatible with privatizing Social Security because “it is a young person’s right to choose”.

  56. #56 |  Delta |

  57. #57 |  CyniCAl | 

    @#49, well played.

  58. #58 |  supercat | 

    #54 | Delta | “do you promise to follow instructions as law as given by judge; to judge only the facts and not the law?”.

    I would reply “If you tell me what the law is, I will obey it.” Note carefully the construction of that sentence. A casual reading would interpret it as “I will regard whatever you say as the law, and obey whatever you say”. The actual meaning would be, “If what you say matches the law, then I will follow the law.” It makes no promise of what I will do if given illegal instructions. A very important distinction, but one judges have ignored for centuries in the decisions since Marbury v. Madison which announced that part of the job of the court is to say what the law is. That description of the court’s job is accurate, but the decision has since been regarded as evidence that anything the court says is law. While the court cannot *legitimately* make decisions contrary to the law, and this would imply that if any court decision is legitimate, the law must be what the judges say it is, it would be absurd to believe that judges would be biologically incapable of making decisions which are just plain illegitimate, and is thus equally absurd to believe that the fact that judges say something makes it legitimate law.

  59. #59 |  Delta | 

    supercat: True, and that’s effectively what I did in this particular case.

    But in retrospect I’m considering which of these seems better (likely to effect a trial for justice): (a) obfuscatingly get on a jury as 1 vote against 11 who actually believe they have to follow judge’s instructions* (and also spend weeks of time in the trial), or (b) openly educate the whole jury during voire dire (and also get kicked out of the jury as an after-effect). At this point option (b) seems better to me.

    * Note that at least one person who obscured their intent during voire dire on a drug case and then brought up nullification during deliberations was actually held in contempt of court (fined $1200 in 1997):

    Final follow-up: I asked an acquaintance who worked as court reporter in NY for 20 years about this, and he’d never even heard of jury nullification.

  60. #60 |  croaker | 

    @59 The contempt and fine were overturned on appeal.