Posted on 07/02/2004 11:28:32 PM PDT by betty boop
Jury nullification is indeed a two-edged sword. The OJ trial is a case, really, of jury nullification. They simply refused to convict based on a general mistrust of the police that his attorneys played on.
The second, civil, trial bothered me in much the way that the re-trial of the Rodney King cops bothered me; it smacks of double-jepardy. Someone didn't like the first verdict, so they re-try the case until they get the answer they want. Actually, I wasn't that happy with the verdicts, but under our system, once the jury has spoken, that it supposed to be the end of it. Re-visiting the crime with federal civil rights prosecution, or a civil suit after aquittal "nullifies" the first jury.
So if juries have almost forgotten that they can nullify laws, lawyers and judges have discovered ways to nullify juries.
Whatever its imperfections, jury nullification stands as the penultimate popular veto (the ultimate being the second ammendment). Both of these are blunt weapons. If things have deteriorated to the point that they are needed, things are in bad shape indeed. But knowing that they exist provides a corrective that more often than not prevents the need to invoke them. And if things really go sour, thats what they are there for. In a democratic republic, laws have to have popular support or they are not law.
That gets spooky in cases where the majority are oppressing a minority, which happens from time to time, where the victim is not very likeable and the perp is a sympathetic figure. In such a case jury nullification could leave the victim without any redress. But this is intended as a corrective against state misconduct, it can't do much in the case where the good neighbors have gone off the track. But that is the weakness of democracy in general, not merely of the jury system.
So if you are a victim and the jury has refused to convict your victimizer, you have the option of leaving it to God, or taking justice in your own hand, either of which stands in its own way as another kind of jury nullification. Judges and police, in the final analysis are our agents, not our rulers.
Or you endure and work to change the hearts of your neighbors. Its slow, but its how people finally change. Thats where preachers and pundits come in to play their role.
You can never achieve perfection, you can only set up enough checks and balances and back doors and parallel routes so that you can't game the system indefinitely, and no one has the absolute advantage.
Personally, I view jury nullification along with the right to keep and bear arms as "reset buttons" for the rule of law, provided by the framers to keep both the federal and state government in check. Their existence alone ought to be enough to constrain the law makers and judiciary.
But rather than being constrained by them, on the one hand, the law makers seek to make the second amendment of no such effect and on the other hand, the judiciary omits to mention jury nullification while at the same time, exercising that very power on their own initiative (judicial activism).
The problem is ignorance, a basic (K-12) education system which keeps the next generation in the dark about the checks and balances of our rule of law and the veto power of the governed. Conversely, the solution is information. When the educators don’t or won’t speak of such things, then we can via broadcast – internet, publications, etc.
Excellent point, djf -- the idea being that no juror should walk away from his jury service with a tortured conscience, of feeling that his vote was inherently, morally wrong, even though it complied with the law as interpreted to him by the judge.
I, too, am deeply concerned that jury verdicts have been "nullified" by the legal system in recent times. As marron also points out on this thread, the OJ case is a great example. I don't have any particular sympathy for OJ, and think he probably murdered his wife and her friend. But the matter should have been over with after the criminal trial, regardless of whether we approved the jury's verdict or not. The later civil proceeding was a double-jeopardy for OJ, and a nullification of the criminal jury's verdict. This to me is most unsettling....
Bravo. I'd love to be on a jury, and too many people try to get out of it. Then people complain about how silly juries act.
I think Chief Justice John Marshall was, in a certain sense, endeavoring to increase the power of the court -- by virtue of the doctrine of judicial review -- in Madison v. Marbury. But I think he had a reasonable basis to do this, given the language of Article III, section 2: "The judicial power shall extend in all cases, in Law and Equity, arising under this Constitution...." This must mean the law under which a person has been indicted must pass muster under the Constitution, that the justices must measure the law against what the Constitution requires in order to render justice. If there is no constitutional basis for the law, then it is a nullity and has no force.
If the court should so find, this would be a rebuke of Congress, to be sure; yet it is not a direct veto on an act of Congress, but an indirect one resulting from the presentation of an actual case at law where statutory requirements must in all justice be subordinated to the constitutional rights of a real, actual defendant who has been indicted for an alleged crime.
It seems to me that judicial review of the constitutional basis of a law is something that ought to occur at all levels of the federal bench. Obviously, this is not the case.
So if SCOTUS winds up being "the court of last resort" for judicial review, so to speak, perhaps that is not a bad thing -- provided the justices' decisions actually accord with the Constitution rather than with their own jurisprudential preferences. This is where things really get dicey....
Perhaps the answer lies in less judicial reliance on the principle of stare decisis. A "bad" (e.g., patently unconstitutional) SCOTUS decision doesn't get any better with age; and to bind the Court with wrongly reasoned precedent is no service to justice.
Thanks so much for writing, jammer, and pointing out this very important issue.
LOL, cryptical! yep, that stratagem is virtually guaranteed to work every time.... :^)
Absolutely, database. Still, I don't think Chief Justice Marshall was a usurper. I think he was trying to "put some flesh on the constitutional bones," i.e., the logic and reason that informed the spare constitutional language of Article III, Section 2 -- to express its meaning in terms of the duty laid on the court by the Constitution. And it doesn't seem to me that he took a real "flyer" in what he did -- his interpretation of the language does not seem the least unreasonable, nor any great logical stretch. I think Marshall's judicial review implicitly follows from the logic of the text.
Marshall was not far removed from the Framers in time, and the Framers' philosophy of government was still vividly current at the time of Marbury v. Madison. In all probability, Marshall shared it.
Plus he doesn't seem to have been particularly "dictatorial" or power-hungry. Case in point: When the prosecution in the Aaron Burr trial wanted to subpoena then President Thomas Jefferson to appear and testify, Marshall issued the warrant. But Jefferson refused to appear, and I gather did not feel he needed to give the court any reason for his non-appearance. Marshall had the good sense to simply let the matter drop -- he did not push it. In this, he indicated a certain respect for the prerogatives of the executive which, in a system of divided powers, I think can be a good thing. I think if he had been a real dictator type, he would have found a way to dragoon TJ into court.
But then, that's only my opinion. FWIW. i could always be wrong. :^)
Conscription to fight in foreign wars immediately comes to mind.
Under our Constitution we gave Congress the power to declare wars and to 'raise Armies', -- and, we are all pledged by our oath of citizenship to defend our Republic from enemies, foreign & domestic:
--- I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God.
In acknowledgement whereof I have hereunto affixed my signature.
In some cases, INS allows the oath to be taken without the clauses:
"… that I will bear arms on behalf of the United States when required by law; that I will perform non-combatant service in the Armed Forces of the United States when required by law…
OK, I have more time now.
"that the justices must measure the law against what the Constitution requires in order to render justice. If there is no constitutional basis for the law, then it is a nullity and has no force."
The historians of law would love everybody to believe that. The history of law is quite different.
The Constitution itself, started solely as an investment of some authorities in a centralized federal government. The BOR was added as almost an afterthought.
"Common Law" does not mean "ordinary law". It means "the law of the common folk".
The kingdoms that came about in Britain finally realized it was better to have the regular folks deal with issues like murder, rape, etc. So "common law" by it's essence is law not of or by the government, but the law of the people.
The true source of law is regarded by the framers as being the almighty, not government. Story himelf at one point states in his commentaries that even Supreme Court decisions are interpretations and opinions about law, not true law.
The vast majority today of what masquerades as "law" is actually "equity".
I rarely discuss law and politics anymore. We are close to the point where, if a judge tells the bailiff to haul you off and put you in chains, the bailiff will do so, whether you or the judge is right or wrong.
And then law no longer makes a difference, it is then simply "might makes right".
I agree, tpaine -- and among the constitutional facts is this fact: The Constitution nowhere requires juries to be mere "rubber stamps" of the judicial authority. Juries are expected to be, not only impartial, but independent: They are completely free to make up their own mind according to their own best lights. And this applies to the law, not merely to the facts of the case.
Happy Fourth of July, tpaine!
I'd acquit the guy in a heartbeat under this set of facts. :^) And with a clear conscience to boot. :^)
I agree, tpaine -- and among the constitutional facts is this fact:
The Constitution nowhere requires juries to be mere "rubber stamps" of the judicial authority. Juries are expected to be, not only impartial, but independent: They are completely free to make up their own mind according to their own best lights. And this applies to the law, not merely to the facts of the case.
Good to see we can agree again Betty. Now if I could just convince you to withdraw your support of the 'myrmidons' of the American political class, as our author points out:
"-- It's probably fair to say that jury nullification is about as popular with the American political class, including its myrmidons in the media and academe, as the Second Amendment guarantee of the right to keep and bear arms.
Yet the former may well find a way to be helpful to the latter in the courts of law.
There is no law that says "elite opinion" must inevitably get the last word on such questions. -- "
And a Happy Fourth to you Betty.
Exactly my experience the one time I was seated on a jury. I fully support nullification, but it wasn't even a consideration in my (drunk driving) case.
These days, I strongly believe each citizen should judge laws for themselves - politicians have gone nuts and have passed far too many stupid laws. I'd have no problem nullifying an obviously-ridiculous and/or intrusive law.
That's a great observation, A-G! Yes they are, and many members of "the political class" don't want us to know this. I agree wholeheartedly that education is the key -- especially as the public schools no longer teach children about their heritage. I was speaking with a high school history teacher the other day, and couldn't believe it when he told me he had never heard of jury nullification! Sigh.... Thanks so much for writing -- have a wonderful Fourth of July!
Thank you so much for the encouragement! Happy Independence Day!!!
Oh yes it is, dear marron. The OJ case you cite is most instructive. Many Americans took great umbrage at the result of the first, criminal trial, feeling that justice had not been served. American popular opinion had been turned against the very idea of jury independence by the mass press at the time: "Popular justice" called for the return of a guilty verdict.
But the jury evidently had problems with police procedure and so forth. If the DA's case is sloppy or otherwise questionable, any sane jury might refuse to convict -- under the judge's very instructions that guilt must be ascertained beyond a reasonable doubt. The performance of the DA and the police gave the jury capacious scope for entertaining notions of reasonable doubt.... At best, the performance of the prosecutorial authorities was confusing.
Whatever we think of the trial outcome, that should have been the end of it. But it was not: The criminal jury was overridden -- as it were nullified -- by the civil jury. Such a development does not seem to be authorized under constitutional rules.
So the public needs to ask itself whether such an "evolution" of legal rule is justified or authorized by the Constitution under which it has long lived. That is, the public must ask this question, and answer it, if it expects to maintain the rules of existence as it knows them from its own direct experience over time. Either that, or it must be prepared to quickly adapt to whatever pipe dream legal theory has been conjured up and articulated by the newest "bright boy" that the New York Times might want to feature on its front page....
As for me, I would rather set a guilty man free than ever to see the Constitution undermined.
Think of our sovereign, unalienable rights this way: (1) Never have any of them ever been grants of the state -- They have a divine source, and thus the state may not touch them in any way. (2) The state will try, not only to touch them, but to make them go away. (3) Natural rights -- that is, God-given rights -- are like muscles: You use them, or you lose them.
Thank you, dear friend, for your beautiful reply, and for letting me rant here....
p.s.: As I mentioned a while back, the Fully Informed Jury Association (www.fija.com) is an excellent source of materials that educate people in their sovereign rights as jurors. I also mentioned this was a Libertarian organization -- which is not to impugn the outfit in any way. Just noting the vintage here.
In any case, FIJA justly sees the sovereign rights of jurors as a potential check on the excesses of government authority. I get the impression they think the next "test cases" will come in the area of marijuana decriminalization/legalization. The point is, whether they're right or wrong about this, if there is any real, solid public enthusiasm for anything that statutory law cuts against, if the people insist on their own preferences rather than those their elected officials give them, as enforced by the courts -- under the theory of the Constitution, the people ought to prevail. It seems FIJA believes it has methods and tools that can help in the prosecution of public goals whose proponents achieve a certain critical mass....
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.