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Title: Georgia man grows pot. Admits it. Jury sends him home
Source:
WSB-TV Atlanta 2
URL Source: https://www.wsbtv.com/news/local/ge ... -jury-sends-him-home/799784904
Published: Jul 27, 2018
Author: Bill Torpy for the AJC
Post Date: 2018-07-27 16:13:24 by Hondo68
Keywords: Jury Nulification, respect for the law, this was about fairness
Views: 7224
Comments: 64
DUBLIN, Georgia - This article was written by Bill Torpy for our investigative partners at The Atlanta Journal-Constitution and AJC.com. Javonnie McCoy was growing marijuana when the cops came to his middle Georgia home. He was caught red-handed with it. Almost a pound of it, in fact. He admitted it to police, and later he looked jurors in the eye and said, "Yep, it was mine. I used it as medicine." The jurors let him go. He was minding his own business and wasn’t hurting anybody, they reasoned. He just doesn’t belong in prison. The jury’s decision earlier this month in Dublin, Georgia, may have been due to a muddled prosecution of a muddy case. Or it may have been jury nullification, another case of citizens saying prosecutions for pot are not worth law enforcement agencies' time and effort -- or the impact on otherwise law-abiding people’s lives. It was the second such win in the Laurens County circuit for Atlanta attorney Catherine Bernard, a conservative Republican who’s also a staunch civil libertarian. Late last year, another client of hers fessed up to a jury that he had sold a couple of nickel bags to an insistent undercover drug cop. That client was cut loose after just 18 minutes of deliberation. And this is no liberal soft-on-crime region. Donald Trump won the county 2-1. Bernard also helped get North Georgia authorities to drop charges against the parents of a 15-year-old whose parents allowed him to smoke pot to help combat severe seizures. Ultimately, what may have kept McCoy out of an orange jumpsuit was that his lawyer urged the jury to empower themselves. She told them they are not potted plants or an unthinking arm of government. They, in fact, are the government. She read to the jury a section from the Georgia Constitution that says, “The jury shall be the judges of the law and the facts.” Bernard said the judge chided her for bringing that up, but it seems the words sank in. The case started when police were called to McCoy’s mobile home four years ago. McCoy’s half-brother had allegedly attacked him with a stick and McCoy grabbed his .22-caliber rifle, the one he uses to hunt squirrels, and shot his sibling in the shoulder. Police found several potted plants in McCoy’s bedroom and tagged him with several charges including aggravated assault and manufacturing marijuana, a felony that can bring 10 years. The case stalled in the system and McCoy decided to go to trial. Right before the trial, the state dropped the assault accusation but kept the pot felony charge. (Prosecutors did not respond to my messages.) McCoy was offered eight years’ probation, Bernard says, but chose to fight the case. During trial, McCoy decided to testify. He had little choice. He was caught red-handed. He said his attorney told him, “Talk to them. They will connect with you.” He gulped and sat in the witness box, telling jurors that 15 years ago he was mugged and beaten into a coma. He has suffered migraines and depression and ended up self-medicating with pot “because Zoloft turned me into a zombie.” Prosecutors “tried to make it look so bad, that I was selling it. But I had nothing to hide,” McCoy told me, explaining his decision to testify. “The jurors had their eyes on me. I had my eyes on them.” “Marijuana makes you eat,” McCoy told the jury. “It made me feel calm. It made me relax. It helps with my pain.” He is a country guy who lives by “hustling” -- painting, landscaping, selling fish, driving people to the store. Ultimately, he said, “We had a jury you could relate to. Truck drivers, mechanics, construction. People who worked. They saw I wasn’t bothering nobody. That’s what I believe they felt.” Bernard said she doesn’t coach defendants before testifying because juries pick up on that. “I think they appreciated his honesty.” People in Dublin have respect for the law, Bernard said. But this was about fairness, about properly using law enforcement resources. “In America we leave someone alone if they are not bothering somebody,” Bernard said. “A world where he needs to be dragged away by armed men and put in a cage is not a world where people want to live.” She doesn’t like the term jury nullification. “It brings up a negative image. It’s simply part of being a jury. The jury judges the law and the facts.” Denise de La Rue, a jury consultant not involved in this case, said, “Jurors are really interested in justice. There are often cases of no loss, no foul. There’s no real victim here.” That’s pretty much what the jurors said. A couple said the case presented to them by prosecutors was a mess because the lawyers had to avoid talking about the shooting. In fact, the jurors I spoke with never even knew the missing charge involved a shooting. Two of them said “second chances” also played heavily into their verdict. Lizzie Mae Davis said, “He was believable. He wasn’t trying to make money. He had it to ease his health.” Davis said she really has no problem with people using pot — “as long as they’re not around me.” Juror Brian Loyd said of the verdict, “Sometimes good things happen to good people.” Kenneth Thompson, who works in construction, said jurors liked that McCoy was “forthright.” Ultimately, they decided, the man didn’t deserve to get tossed into the slammer. “If he’s disrupting the peace and dignity of the state, well, a lot of us said he wasn’t bothering anybody,” Thompson said.
Poster Comment: Libertarians are winning in Georgia. A waste of taxpayer dollars paying cops to bust people for victimless crimes. Fire them, give out tax rebates, and a tax cut too.
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#23. To: GrandIsland (#20)
I have to go now … Cue Bucky to post that he knows I agree with you. lol …
by Eugene Volokh on February 2, 2010 3:17 pm From United States v. Polouizzi, decided two weeks ago Perhaps the issue is as well summed up as it need be by quoting briefly from Professor Roscoe Pound and Judge Learned Hand. Pound referred to jury nullification as “the great corrective of law in its actual administration.” And Learned Hand declared that nullification introduces the necessary “slack into the enforcement of law.” It allows the jury to temper the law’s rigor “by the mollifying influence of current ethical conventions.” See, e.g., Andrew J. Parmenter, Nullifying the Jury: “The Judicial Oligarchy” Declares War on Jury Nullification, 46 Washburn L.J. 379, 426 (2007) (providing other supporting citations). See Polouizzi I, 549 F.Supp.2d at 450-54 (providing selected bibliography on powers of jurors when Sixth Amendment was adopted). In Harry Kalven, Jr.’s and Hans Zeisel’s comprehensive and still valid study, The American Jury (1966), the authors concluded that in the relatively rare cases where the jury reaches a “different conclusion from the judge on the same evidence, it does so not because it is a sloppy or inaccurate finder of the facts, but because it gives recognition to values which fall outside the official rules.” “It … will move where the equities are. And where the equities are at any given time will depend on both the state of the law and the climate of public opinion.” See also, e.g., Valerie P. Hans, Judges, Juries, and Scientific Evidence, 16 J.L. & Pol’y 19, 23 (2007) (“[M]any disagreements [between judges and juries] are explained by the fact that compared to judges, juries appear to require a stronger case by the prosecution to convict the defendant; or by the fact that juries infuse community notions of justice into their verdicts Nuff said...
So 12 random citizens should write the law based on the sob story and circumstances of one defendant. Obviously the prosecutor who brought the case didn't think an exception was warranted. Jury nullification bothers me because we're resorting to the rule of man over the rule of law -- different laws for different people depending on their ability to emotionally, not factually, sway the jury. If the law is bad or unfair, re-write the law. Sway the citizens with your arguments and have them put pressure on their legislators. But that's too hard, isn't it? And you might fail. So you prefer going in the back door on a case by case basis, letting the some of the guilty go free while incarcerating others under the exact same law. How about when all- white juries in the southern states refused to convict whites of crimes against blacks? That OK with you? How about today when black juries refuse to convict black men of crimes against whites (OJ comes to mind)? That OK with you? How about if the jury decided that the individual did not break the law as written, but the individual violated the spirit of the law and therefore voted to convict? That OK with you?
Then why did the judge object to something as innocent as that?
Second baseman for the Yankees, 1956-1958?
Funny, that aspect is never brought up.
What if the law doesn't go far enough? What if the defendant didn't violate the law as written, but still violated the spirit and intent of the law as you interpret it? Guilty? 100 percent of the time?
Can’t it? You bet. People like jury nullification because it allow the people they like to "beat the system". But what happens when a jury decides your right to carry a handgun is not protected by the second amendment and votes to convict? Or the jury ignores the instruction "beyond a reasonable doubt" and uses the standard, "He probably did it"?
Jury nullification bothers me because we're resorting to the rule of man over the rule of law -- different laws for different people depending on their ability to emotionally, not factually, sway the jury. I believe that Friedrich Hayek, [do you know who Friedrich Hayek is :)] also had good points in that the rule of law is definitely necessary for the preservation of liberty. He expressed that the defining characteristic of a free society is the rule of law. Which means that those legal rules stated in advance, and are uniformly applied without excessive discretion….are the characteristics of a free society. Hayek said: [John Jay -Second baseman for the Yankees, 1956-1958? lol.]
Yep, you bet. If the law is judged unjust, jurors can make that decision; we have the right to make that decision. How do you think Prohibition collapsed? WE own the country, period. WE provide the checks against judicial and legislative tyranny. As Pinguinite says below, 12 regular people in agreement outweighs a single corrupt or racist judge, every time. And I don't give a shit if you or a judge doesn't like it. I will inform jurors of their right to judge the law as well as the fact, whether I'm one of them or not. File an appeal if you don't get a verdict you like. And there are millions like me who will do the same. As I've told you before, we have in place millions of bullshit laws that bought politicians refuse to revise or eliminate because they were paid off to create them. We will, slowly but surely.
Juries cannot in any circumstance create law. In the case of nullification, they only hold a form of veto power over the implementation of a law in a particular case. Juries are not professional legal analysts or lawyers. They represent the common people who apply a common sense viewpoint of laws that defendants are charged with breaking. The case of William Penn made it obvious that regardless of what you may thing of whether Jury Nullification is something Juries should do, because they cannot be punished for any verdict they reach, it is a de facto power they must be recognized to have. Any complaint you raise about how a jury might rule, even if unfairly guilty in convicting an innocent man because of race, is also something a single robed jurist can do as well. At least with a jury it requires all 12 to agree to reach an unfair racial verdict. If you want a perfect world in a court room, you won't find it. If the views of common people should not be a factor in deciding someone's fate, then you should campaign against having them involved in the courtroom process, and just use a computer to decide guilt and innocence. (I'm sure you'd be fine with that, given your attitude). Yes, the "back door" method may be what it is, but not all back doors are secret passages. Jury nullification allows the common people, represented via random selection of views, to check the power of laws created by the normal political process. There's nothing inherently wrong with that and, in addition, it's again on top of the fact that it's impossible to deprive juries of that power anyway. Robed judges have the power to set aside a conviction of a racist based verdict, but not convict one the jury has acquitted. Improper convictions can also be overturned on appeal if the judge is racist as well.
You're saying it much better than I. I just don't waste much time anymore trying to explain to people that in the USA the people are sovereign - we need to start acting like it again.
It CAN happen and most probably WILL at some time, under jury nullification. If California cities CAN be sanctuary cities and California CAN be a sanctuary state….then a jury CAN take away your Second Amendment rights. Most libertarians love jury nullification, occasionally there is a smart one among them that does not. A while back, at our local libertarian discussion group, we spent an evening discussing centralization vs. decentralization of government, and whether one or the other better protects individual liberties. Many libertarians argue for decentralization. The anarchists in the room will argue for the ultimate decentralization, all the way to the individual level, essentially voiding the concept of government altogether. Others who are more amenable to some government argue for decentralization because it tends to allow for competition, with citizens voting with their feet and wallets for more favorable tax and regulatory regimes. On the other hand, the US provides historical examples of the benefits of federalism in protecting individual rights. Certainly the abolition of slavery and later of Jim Crow laws were a positive outcome from the feds, as are the enforcement of Bill of Rights protections on the states. I would personally love to see a federal system like our own with all legislative power held as locally as possible, but with a federal government whose main purpose domestically was not taxation/regulation/legislation but instead enforcement of a more robust Bill of Rights and nullification of state and local law that violated protected individual freedoms. Anyway, one topic related to decentralized authority was j ury nullification. Jury nullification is the ability for juries to rule on the law, rather than guilt or innocence. An example might be "the jury thinks Joe is guilty of smoking pot, but we don't think smoking pot should be illegal, so we are going to let Joe go." Most state law technically does not allow juries to rule on the law itself, but as a practical matter there is no way juries can be prevented from doing so (Prosecutors really go non-linear over jury nullification -- I remember Patterico had a long series inveighing against it.) Anyway, as you might imagine, the libertarians in the room mostly love jury nullification. Despite being a good anarcho-capitalist, I disagreed. I understood that most of the examples people brought up did indeed demonstrate that jury nullification could be a tool for protecting individual rights. However, I believe that nullification could equally be a tool of oppression. For example, in criminal law, take the Enron-Skilling trial. I am not saying this happened, but one could certainly imagine a properly inflamed jury saying "well, we don't think he is technically guilty beyond a reasonable doubt on the charges based on the evidence here in court, but he's rich and Enron failed and people lost money and we're pissed off, so we will find him guilty. They would be saying "what he did was not a violation of the law, but it should be, so we are sending him to jail." This is just as much jury nullification as my previous example. I don't think this kind of anti-individual-rights jury nullificatin happens often in criminal court, but I do think it is happening a lot in civil court. In fact, I think one way you could summarize what is wrong with torts and litigation in this country is that we are seeing rampant jury nullification in favor of wealth redistribution. Juries are ignoring the law, the facts of the case, and all reason for one and only one consideration: "One guy in the room is rich, one guy is not, and I have a chance to take money from the rich guy and give it to the poor guy." For while it may be hard in America to get 51% of the voters to support substantial increases in wealth distribution, smart lawyers like Peter Angelos and Jon Edwards have figured out that it is not that hard through voi dire to get at least seven or eight such votes in a room of twelve people. Particularly if you are good at venue-shopping: In Race, Poverty and American Tort Awards (and here), Eric Helland and I show that tort awards increase strongly with county poverty rates especially with minority poverty. A 1% increase in black poverty rates, for example, can increase tort awards by 3-10 percent with a similar increase in Hispanic poverty rates. Careful forum shopping can easily raise awards by 50- 100%. Anthony Buzbee, a famed plaintiff's attorney, inadvertently let the That venue probably adds about seventy-five percent to the value of he case," he said. "You've got an injured Hispanic client, you've got a completely Hispanic jury, and you've got an Hispanic judge. All right. That's how it is." In other parts of Texas, Buzbee went on, a plaintiff may have the burden of showing "here's what the company did wrong, all right? But when you're in Starr County, traditionally, you need to just show that the guy was working, and he was hurt. And that's the hurdle: Just prove that he wasn't hurt at Wal-Mart, buying something on his off time, and traditionally, you win those cases." The problem with letting juries write law in the jury room is that there are no Constitutional protections at all. If they want to make the law, at least for that day, read that homeowners are liable for inj uries suffered by burglars trying to break into their house, then that is what the law becomes, fair or not. If they want to make the law read that drug companies sh ouldn't sell painkillers that have any risk at all, then that is what the law is, and the rest of us 300 million minus twelve people have to live with fewer choices for managing our migraines.
Especially to people like MisterWhite who holds an Orwellian philosophy that would be better suited for China or the USSR.
Juries cannot in any circumstance create law. In jury nullification….juries do legislate from the jury box. The same as in some instances judges legislate from the bench. This was brought home to be a few years ago when my brother was arrested for domestic violence. Despite testimony that showed his accuser too drunk to know who was in the room with her and further testimony that put my brother in the next county at the time of the attack, he came very close to being convicted and spending a significant amount of time in prison. As it was he spent several months locked in a county jail awaiting trial. I’m thankful that at least some of the jurors put aside their feelings and judged the case according to the facts. The result was a hung jury – which is only slightly better than a guilty verdict. The district attorney, who had actually paid his attacker to come to court, was set to re-try the case. My brother did what too many poor men are forced to do when they can’t come up with the ten thousand dollars necessary to hire an attorney – he let the public defender cut a plea bargain for him. Despite all of this, my brother is fortunate. He will soon be off of probation and can go about his life as a free man – albeit one with a hell of a bad memory never far from the front of his mind. Some men are not so lucky. The rhetoric used to describe anyone who has been accused of a crime makes sure that there is a permanent stigma attached to them regardless of what the jury says. Ten thousand dollars is a high price to pay for a shot at clearing your name. The problem is that some people simply insist on bringing other experiences and knowledge into the jurors’ deliberation room. That is a violation of the entire principal of trial by jury and justice before the law. Such a problem was taken up by the Colorado Supreme Court recently when it overturned the death penalty handed down in the case of Robert Harlan. It seems that some of the jurors had written Bible verses down and snuck them into the deliberation room to influence the rest of the jury to come back with the penalty they preferred. It worked. Reading “an eye for an eye” endlessly and locking up the jury until they all agreed ensured that Robert Harlan was sentenced to death. Fortunately, the Colorado Supreme Court ruled that introducing non-legal matter into the deliberations invalidated the verdict. Harlan will now spend his life in prison rather than be put to death because a minority believed they knew better than the law what to do with his case. I do support the death penalty – in theory. However, if it is to be used, it should never be because a juror was browbeaten into submission. I also support using Christian principals for helping you in all decisions you face. However, I do not support using only part of the Bible to justify an action. The Bible must be taken hermeneutically – which is a big way of saying that every part of it must be in perfect agreement with every other part. Sneaking in a few verses that back up your pre- determined verdict is not the way a Christian should behave. I’ll even go further and say that those jurors who went around the legal system should be charged with abuse of power. It would be one thing if they had sent a note to the judge and asked if they could use the Bible. They didn’t because they knew they’d be turned down. Instead, they betrayed their public trust and put themselves above the rule of law. I’m sure they are now screaming to high Heaven about “judges legislating from the bench”. Of course, this isn’t what happened. The judges merely prevented them from subverting democracy by legislating from the jury room. For too many people today, simply enforcing the law fairly is now considered to be an infringement of their rights. This sprouts from the irresponsible ideology of selfishness known as Objectivism that holds any action that restrains an individual as being wrong. It is a godless theory and one that is responsible for destroying the moral fabric of the country. At least for now, we can find some comfort in judges that believe in equality and the rule of law. God help us if we lose them, too.
Just because a judge can legally set aside a verdict in no way means that a jury can set aside a law and disregard evidence in jury nullification. Your False Equivalency Fallacy will not work. You are attempting to describe a situation of logical and apparent equivalence, when in fact there is none. While a judge has the power in CERTAIN SITUATIONS to overturn a guilty verdict by the jury, this power is not completely discretionary on the part of the judge. This control will prevent a judge from overturning a verdict simply based off of emotions or feelings. A fair trial is to be given and the judges must take all things into consideration and come to a conclusion BASED ON EVIDENCE, not feelings. Only in CERTAIN SITUATIONS can a judge can overrule or change the guilty verdict that the jury has decided on. Typically, this is called one of two things: When a jury disregards a law and ignores evidence with jury nullification, they are following their feeling. There is a big difference …
In this case, the lawyer appears to have carefully argued what the Georgia constitution says (which is an anomaly). Georgia Constitution, Article I, Section I Paragraph XI In the cited case quoting John Jay, it should be noted that Georgia v. Brailsford, 3 Dall. 1 (1794) did not involve an Opinion of the Court, but the announcement of the verdict of a unique select special jury of experts in a unique trial case at SCOTUS. https://www.scribd.com/document/384898227/Georgia-v-Brailsford-Powell-Hopton-3-Dallas-1-3-US-1-1794 A Georgia lawyer invoking the Georgia constitution is on solid ground. A lawyer invoking a comment of John Jay about the Brailsford trial case might get bonked on the head. The Georgia constitution is solid authority for Georgia.
Correct. And the U.S. Constitution gives us the way to write and change our laws. Using jury nullification to negate the laws written by the majority of the citizens is anarchy and unfair to the majority who expect their laws to be followed.
Can’t it? Only on a case by case basis. The jury cannot set a precedent to be followed. The jury does not have a "right" to nullify a law. They have immunity from prosecution for what they do as jurors. Such nullification remains a legal wrong, but is not prosecutable. Another jury, viewing a case with identical facts, could follow the law and vote to convict.
If it were that cut and dried, the prosector would refuse to bring charges, figuring he'd never get a jury to convict. Or the case would be plea bargained and never go to a jury trial.
Then why was the judge upset?
Yes, of course. If a prosecutor felt that juries usually nullify in particular subject matter, they will be less likely to attempt prosecution, which saves court fees, court time and so on. Cops likewise, knowing that a prosecutor is unlikely to prosecute for a type of crime, are less likely to arrest for those same offenses for similar reasons. That's exactly what happened to prohibition. Of course, this doesn't happen in the case of a single nullification case, but only when it's a repeating pattern, which is a signal that the vast majority of the public disagrees with a certain prohibition, as nullification requires unanimous consent.
[Hank Rearden] Yep, you bet. If the law is judged unjust, jurors can make that decision; we have the right to make that decision. The jury enjoys immunity from prosecution for what they do in deliberations, even if they disregard the court on what the law is. Having immunity from prosecution does not change a legal wrong into a legal "right". The judge can overrule a guilty verdict. He cannot overrule a not guilty verdict after the fact due to jury nullification. As a separate, and distinct possibility, an acquitted defendant may be retried upon a later finding of a rigged jury. That possibility proceeds in the face of double jeopardy claims on the theory that jeopardy never attached in the trial with the rigged jury. If a juror should be found, during a trial (before a verdict) to be engaging in juror nullification (or intending to do so), said juror may be removed from the jury. Defense counsel may not argue jury nullification. Criminal Procedure, Fifth Edition, West Publishing, Thomson Reuters (2009), by Wayne R. LaFave, Jerold H. Israel, Nancy J. King, and Orin S. Karr [footnotes omitted] (f) Jury Nullification. The function of the jury is commonly said to be that of ascertaining the facts and then applying the law, as stated by the judge, to those facts. Indeed, it is not at all unusual for a jury in a criminal case to be instructed that it has the “duty” to proceed in such a fashion. But it is nonetheless true that, a jury in a criminal case has the power to acquit even when its findings of fact, if literally applied to the law as stated by the judge, would have resulted in a conviction. This is because a jury verdict of not guilty is not subject to reversal or to review in any manner whatsoever. On occasion, juries will acquit defendants who appear sympathetic, who are charged with violating an unpopular law, who the jurors speculate would otherwise be sentenced too severely, or who haven’t been proven guilty under standards for proof the jurors believe are required despite the judge’s instruction otherwise. Some have argued that this practice, usually referred to as jury nullification, is part of the right to jury trial guaranteed by the Sixth Amendment. Arguably the language that the Supreme Court has used to describe that right appears to encompass the nullification process. In Duncan v. Louisiana; holding that right applicable to the states, the Court declared that in the view of the framers “[i]f the defendant preferred the commonsense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it.” Similarly, in emphasizing the need for juries drawn from a cross-section of the community the Court later asserted: “The purpose of a jury is to guard against the exercise of arbitrary power—to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge." Rather than treating nullification as an affirmative right of the accused (or the juror), however, most courts treat the jury’s nullification power as an inevitable by-product of the finality of verdicts of acquittal. As a result, pre-verdict procedures discouraging nullification abound. Members of the venire who admit that they will not follow the law may be excused for cause, for example. And in United States v. Thomas, the Second Circuit concluded that a juror’s intent to acquit regardless of the evidence constitutes a basis for the juror’s removal during the deliberations, reasoning, “Nullification is, by definition, a violation of a juror’s oath to apply the law as instructed by the court * * * We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent.” The prevailing view is also that the Constitution does not require that a jury be told [1076] specifically that it has the power to disregard the law and acquit. This view is often attributed to Sparf and Hansen v. United States."Two sailors charged with murder asked the judge to instruct the jury on the lesser offense of manslaughter, but the judge refused on the ground that there was no evidence which would support a manslaughter verdict. Rather, he instructed: “In a proper case, a verdict for manslaughter may be rendered, * * * and even in this case you have the physical power to do so; but as one of the tribunals of the country, a jury is expected to be governed by law, and the lawr it should receive from the court.” Holding the jury had not been improperly instructed, the Supreme Court reasoned that “if a jury may rightfully disregard the direction of the court in matters of law, and determine for themselves what the law is in the particular case before them, it is difficult to perceive any legal ground upon which a verdict of conviction can be set aside by the court as being against law.” It is fair to say that Sparf did not settle the jury nullification issue, for the Court did not address the specific question whether jurors should be told they can refuse to enforce the law’s harshness when they conclude that justice so requires. But lower courts have rather consistently ruled that no such instruction should be given, that defense counsel may not make a nullification closing argument, and that “the potential for nullification is no basis for admitting otherwise irrelevant evidence.” When jurors have no responsibility for sentencing, for example, a court will typically prohibit them from learning of the sentencing consequences of their verdict through evidence or argument. This ensures that their decision to convict or acquit is based entirely on the evidence of guilt or innocence and not upon their punishment preferences for the defendant. One leading case on the propriety of limiting the information and argument provided to the jury on its power to disregard the law is United States v. Dougherty." There the court concluded that the “jury system has worked reasonably well overall” without resort to a nullification instruction, “with the jury acting as a ‘safety valve’ for exceptional cases, out being a wildcat or runaway institutution. This is because, the court explained, the jury “gets its understanding as to the arrangements in the legal system” not only from judge’s instructions but also through “the formal communication from the total culture," and the “totality of input generally convey adequately enough the idea of prerogative, of freedom in an occasional case to depart from what the judge says.” The court expressed fear that a nullification instruction would upset the existing balance and produce more hung juries. Finally, the court in Dougherty declared that such an instruction would deprive the individual juror of an important protection he now enjoys and to which he is entitled: that “when he takes action that he knows is right, but also knows is unpopular either in the community at large or in his own particular grouping, that he can fairly put it to friends and neighbors that he was merely following the instructions of the court.” In opposition to the Dougherty position, it has been contended that there is no reason to assume that juries will act in a different and less desirable way if informed about their nullification power, that there are political advantages to be gained by not lying to the jury, and that a nullification instruction would serve to discourage acquittals based on prejudice instead of encouraging them, by setting justice and conscience as the standards for acquittal rather than leaving the jurors to use their own biases as standards.
Perhaps more of a "procedural wrong" as per standard court rules, yet not a lawful wrong as in a violation of the law, as you pointed out. Calling it a "legal wrong" casts it in an vague light, I submit.
Towards the end, yes. "which is a signal that the vast majority of the public disagrees with a certain prohibition" True, but Prohibition was not repealed because of jury nullification.
So, how do free citizens keep a check on tyranny? Follow the law?
The Indians were free and had no laws. So we're the mountain men.
Or change the law.
2/3 of the various jury nullifying state legislatures had a snort in the cloak room, and ratified the 21st amendment ending prohibition. Jury nullification, for the win!
Of course not. But jury nullification occurred for the same reason as the repeal. The public didn't want it.
When they are instructed by the court as to what law to apply, and they act in deliberate defiance of the court, they do something contrary to law. The D.C. Bar calls such action by the jury an abuse of its power. Whatever it is to be called, nullification is not a legal right. In U.S. v. Kleinman, 14-50585 (9th Cir., 4 Apr 2017), the Court concluded, We conclude that the district court erred by instructing the jury that “[t]here is no such thing as valid jury nullification,” and that it “would violate [its] oath and the law if [it] willfully brought a verdict contrary to the law given to [it] in this case.” However, because there is no right to jury nullification, the error was harmless. We find that Kleinman’s remaining challenges on appeal are without merit, and AFFIRM his conviction and sentence. https://www.dcbar.org/bar-resources/legal-ethics/opinions/opinion320.cfm D.C. Bar Jury Nullification Arguments by Criminal Defense Counsel [excerpt] The District of Columbia has no rule or statute authorizing jury nullification. Both the local courts and the federal courts have rejected assertions that juries are entitled to an instruction apprising them of their “right” to nullify the law. See United States v. Washington, 705 F.2d 489 (D.C. Cir. 1983) (fact that juries can abuse their power and return verdicts contrary to the law does not mean that courts must give such instruction); Reale v. United States, 573 A.2d 13 (D.C. 1990) (trial court not required to instruct jurors about their power of jury nullification). Indeed, both federal and local courts in this jurisdiction have endorsed jury instructions that are designed to discourage jury nullification. See, e.g., United States v. Pierre, 974 F.2d 1355 (D.C. Cir. 1992) (approving jury instruction that jury “should” return a guilty verdict if the government has proven its case beyond a reasonable doubt); United States v. Braxton, 926 F.2d 1180 (D.C. Cir. 1991) (same); Watts v. United States, 362 A.2d 706 (D.C. 1976) (en banc) (jury instruction may discourage nullification). Moreover, the standard jury instruction given in District of Columbia courts contains this express admonition to the jury: “You may not ignore any instruction, or question the wisdom of any rule of law.” Criminal Jury Instructions for the District of Columbia, Instr. 2.01 (Bar Assn. of D.C. 4th ed. 1993). Within this jurisdiction express exhortations to ignore the law are, therefore, likely to be deemed prohibited by law and may, therefore, result in violations of the D.C. Rules of Professional Conduct by lawyers who advocate such a course. See D.C. Rule 8.4.
The Indians were far from free. White man victimized the dog shit out of them and took their freedoms. If there where LAWS like we have today, the Indian would still be in charge. You prove my point... as you try and resist the truth. We need laws, or we ain’t free.
I'm the infidel... Allah warned you about. كافر المسلح
You'd prefer the rule of men?
Oh, how's Anna Mae Aquash feel about that?
The D.C. Bar does not decree law. Whatever it is called, exercising it is not punishable in any way, shape or form. And anything that one may do without any possible recourse of lawful punishment is, at minimum, a de facto right, even if it is not a right created by statute, declared a natural right or otherwise positively affirmed as a right by any court. At the end of the day, juries can nullify and walk away, and there's nothing any court can do about it.
I very much doubt this. Every social community will have laws. If it has so much as a leader, it has laws. Maybe only one law, that being that the chief is in charge, but if that's all it is, it's a law.
No, but they can reduce the prevailing law to a short story rather than a book. This is just wrong and misguided. If you are unable to sue a law enforcement officer for some violation against you because he enjoys immunity from suit, it does not give him the right to abuse you. If an active duty military member cannot sue for medical malpractice at a military hospital (see the Feres Doctrine), it does not create a military right to commit medical malpractice. Immunity from suit or prosecution does not change an unlawful act into a lawful act. It acts as a restraint against suit or prosecution. As very clearly stated in U.S. v. Kleinman, 14-50585 (9th Cir., 4 Apr 2017), quoted at my #53, "there is no right to jury nullification." There is no de facto or de jure or other right to jury nullification. Simply arguing for jury nullification is prohibited misconduct in the overwhelming number of states. True, not because of any de facto right to nullification, but due to the law's recognition of the superior competing interest of the sanctity of the jury.
Does this mean I didn't have a right to use my bathroom earlier today? Because it's never been adjudicated in a court of law? Your examples are extreme and ultimately come down to semantics. Your definition of a right is a specific act that has been positively affirmed by law and the courts. My definition of a right is anything the state is legally powerless to prohibit. We've had this discussion before and there's no point in rehashing. You can have last word.
If your jurisdiction does not recognize at will bowel movements, I would move to a different jurisdiction. San Francisco might be good for freedom of choice. I cited no example that comes down to semantics. The Feres Doctrine is very real. If an active duty military member goes into a military hospital for a circumcision, and through medical malpractice they cut his penis off, he cannot sue for damages. There is an absolute to such a lawsuit based on the logic(?) that they will provide him free health care. There is nothing semantical about it. The military member cannot sue for military medical malpractice, regardless of how egregious it may have been. The military doctors and the military enjoy absolute immunity from such a lawsuit. It does not mean they had a right to do what they did, contradicting your stated legal position. Indeed, as you state that "Perhaps more of a 'procedural wrong' as per standard court rules, yet not a lawful wrong as in a violation of the law...." Whatver do you believe immunity protects you from? Immunity presupposes something for which you might get sued or prosecuted. I am unsure if your intent is to limit this to the 50 states, or to include the Federal government as "the state." I choose to include the Federal government. While your chosen personal definition of a right is rather quirky, I would point out the obvious. The government may impose a curfew and prohibit you from going outdoors. The government may imprison you for an extended period without charge or trial. The government may execute you. They may vaporize you with a missle strike, based on a star chamber secret determination that you are an unlawful combatant. The government may take away your property. The government may prohibit you from possessing marijuana, alcohol, machine guns, switchblade knives, plastic straws, or whatever else they may decree. The government has the power to enact unwise laws and enforce them. The government has the power to enforce martial law. Martial law implements the arbitrary will of the military commander. The Liberty Post gloom and doomers have declared that the government has already exerted its power to take away the Bill of Rights. What is it that you believe the government is legally powerless to do? And what higher law do you base that upon? What is the origin of jury immunity? One of the most famous trials in history is R. v. Penn and Mead, 6 St. Tr. 951 (1670), and the Case of Edward Bushell, Vaugh. 135; 124 E.R. 1006 (1670), which followed it. Penn was the William Penn of later Pennsylvania fame. Young Penn was arrested in London for objectionable preaching to Quakers in the street. At the Old Bailey, the judge all but directed to jury to return a verdict of guilty. After three days, and much pressuring, the jury returned a verdict of not guilty. The judge issued a fine against the jury for returning a verdict against the full and manifest evidence and against the direction of the court in the matter of the law. One of the jurors, Bushell, obtained a writ of habeas corpus, and the Case of Edward Bushell led to the judge made common law of juror freedom from any threats from the court. Lord Chief Justice John Vaughan in the Case of Edward Bushell, Vaugh. 135; 124 E.R. 1006. This is similar to judge made law called Miranda rights. A judge made it up and lo and behold, Miranda rights existed in the form of a required Miranda warning. The judge and the courts are part of the government. What the government giveth, the government can taketh away. The plaque is at the Old Bailey.
I offered you last word but since you asked me a few questions, I consider the offer declined. In light of the examples you gave, apparently nothing, except perhaps defy gravity, and I wouldn't put it past Congress to legislate that power into existence as well. After all, since it's government that passes laws about what it can legally do, then there is ultimately nothing the government cannot grant itself legal power to do. The logical conclusion: We have no rights whatsever. Everything, including as you gracefully pointed out, bowel movement, is a mere privilege granted by people in legislative power. Then again, those people are only a revolution away from meeting an ugly demise at a guillotine or more modern counterpart, so who's to say that even legislators have true power to legislate anything they want? Are not they also privileged? In the dog eat dog world that we ultimately live under, even those legislators can be said to hold their positions at the pleasure of the people who don't put their heads on a pike or string them up from the nearest lamppost. I mean, when you ask about what gov is powerless to do, are we talking here about what they can get away with doing? If so, then what good is all your exhaustive research on case law? Why care about the difference between statutory and constitutional law? natural vs statutory rights, and whatever other classes of rights legal theory may suggest exists. It's all just fleeting ideas in the wind. Maybe they are ideas that will last decades or centuries, but nonetheless, they are fleeting. I have come to take a pragmatic view of law in the last decade. Where I live, I have bribed cops a couple of times so I wouldn't get a ticket. Did I break the law? Well, I wasn't prosecuted for it ..... it seems the gov here was legally powerless to do so, and therefore, bribing the cops was, in the end, legal. Would you disagree? There's nothing quite like living in a foreign country, especially one that at least offers the common people access to the corrupt mechanism of government. That in contrast to the "developed" USA where such access to corruption is reserved only for the elite inside the DC beltway, which is being put on display by the DOJ and FBI for all the world to see!! I imagine most every other alphabet soup agency is just as corrupt, only it hasn't been exposed as yet. Do you have such a pragmatic view of government when you do the meticulous and undeniably highly detailed legal research you do? Personally, I can't imagine it. Nothing like taking in one view of endless shelves of "case law" in a law library to depress me about what the legal world has become. Law has taken on all the attributes of a religion, quite frankly, and lawyers are its priests, with judges being the high priests. I wonder if you piled up all theological books on Christianity next to a pile of case law history books, which one would pile higher. Seriously. Back to the point you ask: Nothing, nolu. In the context of the entire universe, there's absolutely NOTHING they cannot do. I stand corrected. They can do anything the people permit. Period. In the end, in the big picture, it can ultimately be said that we live in nothing less than anarchy. We, the human race, do whatever the hell we want to with each other. In this fleeting moment, it's the lack of any law that says they can be prosecuted.
If you think that's the logical conclusion, you have the right to your opinion. I made no statement that your bowel movements are a privilege. What I did say was, "If your jurisdiction does not recognize at will bowel movements, I would move to a different jurisdiction. San Francisco might be good for freedom of choice." I am sorry to hear you are having difficulty getting your bowel movements approved in Ecuador. San Fran is a drop trou jurisdiction. Not getting caught is not a synonym for obeying the law. I have the remarkably pragmatic view that if someone is trying to nail me with something, and I don't know the law well enough to defend myself, I am helpless. I prefer not to be wilfully helpless. YMMV. I was citing examples of what they can do within the law, legally. For example, the government has the power to keep you imprisoned indefinitely without charge or trial. It is called suspending the privilege of the writ of habeas corpus, see Article I, Sec. 9, Cl. 2. No, anarchy is where the government can't do anything or does not exist, or finds a libertarian excuse to do nothing. As for jury immunity, as the sign by the Old Bailey says, "Chief Justice Vaughan delivered the opinion of the Court which established The Right of Juries to give their Verdict according to their Convictions." Gotta love that old court made, judge made common law.
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Top • Page Up • Full Thread • Page Down • Bottom/Latest I agree with you. I didn’t make myself clear. Sorry …
#24. To: Y'all (#0)
Judge Jack Weinstein Again Sings the Praises of the Jury’s Nullification Power
#25. To: Hank Rearden (#4)
(Edited)
Jury-nullification notices should be required in jury instructions.
#26. To: Pinguinite (#8)
Actually she just read the state Constitution to the jury.
#27. To: A K A Stone (#11)
I'm pretty sure you never heard of John Jay.
#28. To: Gatlin (#12)
"... there is no assurance that a jury operating outside the law would only acquit in a criminal case; it could just as easily “nullify” the instructions by convicting a person who was technically innocent. . . ."
#29. To: A K A Stone (#14)
If the law is unconstitutional in my view not guilty 100 percent of the time.
#30. To: Gatlin (#16)
(Edited)
If the jury can take away the Bill or Rights by jury nullification, and under jury nullification a jury can declare a law invalid so it can be disregarded….then without the rule of law, a jury can take away our freedom by nullifying the Bill of Rights under jury nullification
#31. To: misterwhite (#25)
So 12 random citizens should write the law based on the sob story and circumstances of one defendant. Obviously the prosecutor who brought the case didn't think an exception was warranted.
Excellent points. “When we obey laws, in the sense of general abstract rules laid down irrespective of their application to us, we are not subject to another man's will and are therefore free.”
It is therefore the universal and non-selective essence of law that allows us to be a free society. In Hayek's view, it is precisely because judges and juries cannot pick and choose what laws to enforce in a particular case "that it can be said that laws and not men rule. I agree with that view since I find great truth in what Hayek said. Furthermore, I find it is essentially the same sentiment your expressed.
#32. To: misterwhite (#25)
(Edited)
So 12 random citizens should write the law based on the sob story and circumstances of one defendant.
#33. To: misterwhite (#25)
So 12 random citizens should write the law based on the sob story and circumstances of one defendant. Obviously the prosecutor who brought the case didn't think an exception was warranted.
If the law is bad or unfair, re-write the law. Sway the citizens with your arguments and have them put pressure on their legislators. But that's too hard, isn't it? And you might fail. So you prefer going in the back door on a case by case basis, letting the some of the guilty go free while incarcerating others under the exact same law.
How about when all- white juries in the southern states refused to convict whites of crimes against blacks? That OK with you? How about today when black juries refuse to convict black men of crimes against whites (OJ comes to mind)? That OK with you?
#34. To: Pinguinite (#33)
(Edited)
Juries cannot in any circumstance create law. In the case of nullification, they only hold a form of veto power over the implementation of a law in a particular case. Juries are not professional legal analysts or lawyers. They represent the common people who apply a common sense viewpoint of laws that defendants are charged with breaking.
#35. To: misterwhite (#30)
But what happens when a jury decides your right to carry a handgun is not protected by the second amendment ...
This has been constantly on my mind throughout the discussions on this thread.
cat out of the bag recently when talking about Starr county in Texas.
#36. To: Hank Rearden (#34)
I just don't waste much time anymore trying to explain to people that in the USA the people are sovereign.
#37. To: Pinguinite, misterwhite (#33)
So 12 random citizens should write the law based on the sob story and circumstances of one defendant. Obviously the prosecutor who brought the case didn't think an exception was warranted.
Bullshit. If there’s a more serious job a common person can do that sitting on a jury, I can’t think of it. You quite literally hold a person’s life in your hands. Not only are you judging the person on trial, but also the victim, their families, and everyone who knows them.
#38. To: Pinguinite, misterwhite (#33)
Robed judges have the power to set aside a conviction …
You make this sound so whimsical, which it definitely is not. It has controlled procedures. A judgment of acquittal or;
When a judge sets aside a verdict, the judge is following the law.
A judgment notwithstanding the verdict.
#39. To: A K A Stone, misterwhite (#11)
John Jay said it is the jurors duty to judge law and fact.
Paragraph XI. Right to trial by jury; number of jurors; selection and compensation of jurors. (a) The right to trial by jury shall remain inviolate, except that the court shall render judgment without the verdict of a jury in all civil cases where no issuable defense is filed and where a jury is not demanded in writing by either party. In criminal cases, the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be the judges of the law and the facts.
#40. To: Hank Rearden (#32)
WE own the country, period.
#41. To: Gatlin, A K A Stone (#16)
If the jury can take away the Bill or Rights by jury nullification, and under jury nullification a jury can declare a law invalid so it can be disregarded….then without the rule of law, a jury can take away our freedom by nullifying the Bill of Rights under jury nullification
#42. To: Pinguinite (#33)
They (the jury) represent the common people who apply a common sense viewpoint of laws that defendants are charged with breaking.
#43. To: nolu chan (#39)
A Georgia lawyer invoking the Georgia constitution is on solid ground.
#44. To: misterwhite (#42)
If it were that cut and dried, the prosector would refuse to bring charges, figuring he'd never get a jury to convict. Or the case would be plea bargained and never go to a jury trial.
#45. To: Hank Rearden, misterwhite (#32)
[misterwhite] So 12 random citizens should write the law based on the sob story and circumstances of one defendant.
[1075]
#46. To: nolu chan (#41)
Such nullification remains a legal wrong
#47. To: Pinguinite (#44)
That's exactly what happened to prohibition.
#48. To: misterwhite (#40)
Using jury nullification to negate the laws written by the majority of the citizens is anarchy and unfair to the majority who expect their laws to be followed.
#49. To: GrandIsland (#17)
#50. To: buckeroo (#48)
So, how do free citizens keep a check on tyranny? Follow the law?
#51. To: misterwhite, we the people, nullify bad law (#47)
Prohibition was not repealed because of jury nullification.
#52. To: misterwhite (#47)
True, but Prohibition was not repealed because of jury nullification.
#53. To: Pinguinite (#46)
Calling it a "legal wrong" casts it in an vague light, I submit.
Ethics Opinion 320
Thus, at a minimum defense counsel must necessarily conform their conduct to the substantive law of the jurisdiction in which the lawyer is appearing. See D.C. Rule 8.5(a); see also Restatement of the Law Governing Lawyers § 105 (2000) (“a lawyer must comply with applicable law, including rules of procedure and evidence and specific tribunal rulings”). In this jurisdiction, such substantive law appears to preclude express advocacy of the jury nullification power.
#54. To: A K A Stone (#49)
(Edited)
The Indians were free and had no laws.
#55. To: A K A Stone, gatlin (#15)
I also know that statement is pure bullshit.
#56. To: A K A Stone (#49)
(Edited)
the Indians were free and had no laws.
American Indian Mafia: An FBI Agent's True Story about Wounded Knee, Leonard Peltier, and the American Indian Movement (AIM)
#57. To: nolu chan (#53)
The D.C. Bar calls such action by the jury an abuse of its power.
Whatever it is to be called, nullification is not a legal right.
#58. To: A K A Stone (#49)
The Indians were free and had no laws. So we're the mountain men.
#59. To: Pinguinite (#57)
The D.C. Bar does not decree law.
anything that one may do without any possible recourse of lawful punishment is, at minimum, a de facto right, even if it is not a right created by statute, declared a natural right or otherwise positively affirmed as a right by any court.
At the end of the day, juries can nullify and walk away, and there's nothing any court can do about it.
#60. To: nolu chan (#59)
#61. To: Pinguinite (#60)
(Edited)
Does this mean I didn't have a right to use my bathroom earlier today?
Your examples are extreme and ultimately come down to semantics.
My definition of a right is anything the state is legally powerless to prohibit.
[Pinguinite #57] At the end of the day, juries can nullify and walk away, and there's nothing any court can do about it.
The jury must be independently and indisputably responsible for its verdict free from any threats from the court.
#62. To: nolu chan (#61)
What is it that you believe the government is legally powerless to do?
What is it that you believe the government is legally powerless to do?
And what higher law do you base that upon? What is the origin of jury immunity?
#63. To: Pinguinite (#62)
The logical conclusion: We have no rights whatsever.
Everything, including as you gracefully pointed out, bowel movement, is a mere privilege granted by people in legislative power.
Where I live, I have bribed cops a couple of times so I wouldn't get a ticket. Did I break the law?
Do you have such a pragmatic view of government when you do the meticulous and undeniably highly detailed legal research you do?
I mean, when you ask about what gov is powerless to do, are we talking here about what they can get away with doing?
They can do anything the people permit. Period. In the end, in the big picture, it can ultimately be said that we live in nothing less than anarchy.
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