Morning Links

Wednesday, November 30th, 2011

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60 Responses to “Morning Links”

  1. #1 |  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.

  2. #2 |  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

  3. #3 |  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).

  4. #4 |  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:

  5. #5 |  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”.

  6. #6 |  Delta |

  7. #7 |  CyniCAl | 

    @#49, well played.

  8. #8 |  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.

  9. #9 |  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.

  10. #10 |  croaker | 

    @59 The contempt and fine were overturned on appeal.