Posted on 04/29/2010 12:07:13 PM PDT by Bigtigermike
He wasn’t prosecuted in federal court, he was prosecuted for violation of Tennessee law.
Regardless of what YOU think qualifies as identity theft, the legislature of Tennessee already decided what qualifies as identity theft under the law. And the only thing that qualifies is using an access code of someone else that is ONLY ONE of THREE things:
So "pretending to be someone you're not to gain access to an account" is NOT ID theft in Tennessee unless the account is something like a credit card or bank account.
Your efforts are heroic and commendable, and are absolutely essential, but if someone else had undertaken this work, and you instead had found yourself on a jury of someone charged with violating this law which you KNEW to be unconstitutional, would you still have voted to CONVICT HIM?
If you would have, then what's the point of a jury trial? Why not just feed the facts into a computer and let it flash a green or red light accordingly?
Working to overturn bad law can be done AT THE SAME TIME as refusing to convict someone of violating it. The two are not mutually exclusive as you suggest.
The JURY is the CONSCIENCE of the community. It is the PEOPLE's VETO. If you refuse to apply your common sense and your innate sense of justice when rendering a verdict, than you might as well have written the abusive, tyrannical, unjust, and unconstitutional law yourself.
Do you really think that the principle of justice is so murky and mysterious that the difference between "just" and "unjust" law is beyond the ken of average Americans? If so, then give me a break!
Every juror already has the right to return a not-guilty verdict if he feels like it. A judge has no power to order a jury to return a guilty verdict under threat of punishment [ http://en.wikipedia.org/wiki/Bushel%27s_Case ], and we're not in much of a "mess" right now, are we?
No.
Nor are we talking about a coerced verdict, as you well know if you've read more about the trial of William Penn than the Wikipedia entry. The judge didn't just threaten the jury with confinement (juries were routinely confined in those days until they reached a verdict). He threatened the jurors with contempt, arrest, and fines if they refused to return a verdict of guilty. In that he erred, as the Court of Common Pleas held, because there is no such thing as a directed verdict of guilty in a criminal case.
We're talking about an extension of the somewhat murky principle of "jury nullification" to include a verdict against overwhelming evidence because the individual juror happens to think a law is wrong.
And ninety-nine times out of a hundred, what "wrong" means is not that the law is fundamentally unjust, or even that it had unintended consequences, but that the juror doesn't agree with the law or (more probably) does NOT happen to like or DOES happen to like a party.
I've tried cases since I was admitted to the bar in 1980, and in every case I've been involved in that had a juror that refused to deliberate, it was not because of some high principle but because of personal animosity. Some of them lied on voir dire to hide their personal animosity. But several of them used "jury nullification" as an excuse. Several new trials were granted. Several cases settled on motion for new trial when the jury misconduct was revealed.
That is why the jurors take an oath to show no fear nor favor, and they are charged not to render a verdict out of sympathy to one side or the other.
There are other methods to combat unjust laws. Ignoring the judge's charge and violating one's oath as a juror is not the way to do it. That way lies chaos, because chaos has resulted every time it's been tried.
The very first thing even a marginally competent criminal defense attorney would do in the case of an unjust, unconstitutional, or unconstitutionally applied law would be to interpose an appropriate plea or demurrer (depending upon the criminal procedure laws of the jurisdiction).
At least in this state, a criminal defendant has numerous grounds on which a pretrial appeal may be taken.
But let's assume, arguendo as they say, that some poor sap somehow got a completely incompetent defense attorney who somehow neglected to interpose the proper plea and/or take a pretrial appeal (and despite strong hints from the judge because they don't like being reversed), and THEN didn't manage to assert a defense or present evidence that gave the jury an option of acquittal.
In such a highly improbable case, the law still has multiple remedies. A new attorney on appeal (paid for, by the way, if the defendant is indigent) may file (1) a motion for new trial asserting ineffective assistance of counsel under Strickland v. United States, or (2) an extraordinary motion for new trial or habeas petition asserting the same.
If there is any factual basis for acquittal, which any decent defense attorney can provide, then the jury will and should seize on it. It doesn't take very much to support a jury verdict of acquittal.
But if, theoretically speaking, somehow there is no factual basis for acquittal and the jury can't imagine one, then turning the jurors into unelected legislators is not the answer. Making up an acquittal out of thin air gives you the likes of O.J., only worse since that jury had some arguable facts on which to hang its hat.
As the case law hereabouts states, even though a jury generally has an absolute right to acquit, if the evidence is overwhelming and unopposed then it is their duty to convict.
The only place I’ve ever seen near the courthouse is a Hardee’s. We’re WAY out in the sticks. They didn’t take me, but it was a real hassle b/c their auto-phone wouldn’t tell us till after quitting time Fridays whether we needed to be there Monday, so I had to put in for leave for every Monday for a month, then cancel it when I didn’t get picked.
The Ohio Jury Oath goes like this:
“Do you swear or affirm that you will diligently inquire into and carefully deliberate all matters between the State of Ohio and the defendant (giving the defendant’s name)? Do you swear or affirm you will do this to the best of your skill and understanding, without bias or prejudice? So help you God.”
"All matters" includes the nature and character of the law which the defendant is charged with violating. In New Hampshire, the oath is:
You solemnly swear or affirm that you will carefully consider the evidence and the law presented to you in this case and that you will deliver a fair and true verdict as to the charge or charges against the defendant. So help you God.
Returning a guilty verdict when a juror believes that applying the letter of the law in that manner would unfair, a miscarriage of justice, then THAT would be the violation of the jury oath.
Making up an acquittal out of thin air gives you the likes of O.J., only worse since that jury had some arguable facts on which to hang its hat.
And just how many OJ cases have there been in the last 16 years? In the last 100? You're worried about a stampede of unicorns while I'm concerned with the unfair and abusive application of an unjust law that the jury has the power to stop.
People have been convicted over and over again for mere possession of an unloaded firearm in certain places in the US. The evidence that they merely possessed the unloaded firearm in their home was absolutely overwhelming.
But if I returned a not guilty verdict because "the right of the people to keep and bear arms shall not be infringed," and "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding," then am I upholding or violating my juror oath?
We're talking about the juror's veto power here, which you recognize when you state the fact that there is no such thing as a directed verdict of guilty in a criminal trial.
But you're talking about juror misconduct where the juror lied in voir dire and lied about jury nullification. How is that germane?
And I'm curious: about how many cases does your 99/100 estimate constitute in these last thirty years since your bar exam, would you reckon?
You'd have a heck of a time finding a juror in either place that would think there was anything wrong with that. I think your concern about the right of a RTKBA juror to scotch the conviction is purely theoretical.
The thing to do is bring more and better Heller cases, and attack the problem from the legislative end. Where the 2nd Amendment has been consistently ignored for years by everyone, that's the only thing to do.
I was involved on the trial level with three, perhaps four, cases of juror misconduct. Two attempted to justify their refusal to deliberate with some form of "jury nullification" but it didn't get far. There just aren't that many cases where jurors mess up, and as I noted before any decent defense counsel is going to challenge the law BEFORE we get to the point of a jury deciding if his client is going to the Greybar Motel.
If there's a systematic injustice it needs to be remedied at the appellate and legislative level. The chances of one particular person with the guts to stand against 11 other people in a small room ALSO having a strong constitutional principle regarding something that isn't supported anywhere in his state, and ALSO having the brains to verbalize his objection in a way that (a) won't get him committed for contempt, and (b) will persuade any other juror, is vanishingly small. That's not the way to get any major change done.
The ONLY thing? I've spoken with Dick Heller personally, and the fact is that it took him and Alan Gura about 20 years to set up that case and bring it through to its conclusion. It very nearly didn't make it, because three other plaintiffs were dismissed for want of standing, because they weren't under felony-level indictment for violating an unconstitutional law.
That's 20 years worth of prosecutions that have been proven unconstitutional, and that's a travesty of justice. Isn't the principal purpose of the jury to render a JUST verdict for not only the State, but also the defendant?
You'd have a heck of a time finding a juror in either place that would think there was anything wrong with that.
All it takes is one. And besides, it has already happened in at least two cases which we know of: Jury nullification at work in marijuana, gun cases - and not just formally hung juries, but full-on acquittals. "Chaos every time?"
Jury deliberations are secret. From the last words of the article: "For that reason, we'll likely never know exactly when nullification is being exercised. But we can celebrate it when we see it."
I was involved on the trial level with three, perhaps four, cases of juror misconduct.
See, I had a feeling you were talking about unicorns - three or four cases in 30 years. So why are you throwing out wild-eyed terms like "chaos?"
That's not the way to get any major change done.
Remember the parable of the starfish?
A juror is not required to directly participate in systematic injustice, regardless of whether or not it can be addressed at the appellate level.
And in a sense we're talking past each other. If what jurors WANT is to avoid convictions under an unjust law, the better course is for jurors to fact-find if they can, since that's their proper job.
Every lawyer with time in the courthouse knows that jurors will go with the just result if you give them something to hang their hats on. And that happens every day, it's not dramatic or earthshaking, just good trial lawyers showing jurors how to do the right thing.
"Jury nullification" is a hobby horse of very limited utility. Maybe even a unicorn.
But if you want to ride that hobby horse, be my guest. I'll stick with what I know works.
Otherwise, who are all these lawyers and reporters talking to after the verdict is received? It's SOP to debrief jurors. I was debriefed after the jury I was on reached a verdict. My dad (also a lawyer) was debriefed after HIS jury reached a verdict. A local federal judge was seated on a state court burglary trial (don't ask me what THOSE lawyers were thinking) and she was interviewed by three papers!
Occasionally you'll run across a juror who doesn't want to talk to anybody and just wants to get out of Dodge ASAP. But most of them are happy to explain their verdict, and they LOVE to tell you what you did wrong! I smile, nod, listen, and learn.
And in every case I was involved in where there was jury misconduct, we were tipped off to it by a telephone call from another juror after the verdict went in (or a juror contacting the judge through the bailiff if the trial was still under way.)
Any juror who openly advocated nullification could not hope to keep it secret.
You can try this with someone who hasn't read the relevant opinions going back to the mid 19th Century.
But WE had to research the stupid argument in order to deal with it.
'And WE are so terribly important you know.' I can easily imagine how thorough WE would be with an attitude like that. Heck, I'll bet WE even think the ratification of the 14th Amendment was legitimate! So, thank you for admitting to what you are.
He was laughed out of court,
Of this I have no doubt.
Stick to the prerogative of the jury to acquit on character or factual grounds. Because of the requirement of intent, there's always wiggle room. Don't get involved in all these elaborate conspiracy theories.
Subtle ad hominem. You are either clueless or complicit.
You see, there always have been bad people with lots of money who get together to increase their power and do they ever use the court system, seeing as the laws in this country have been set up for their benefit from the beginning of the republic (particularly with regard to international law).
The jury's discretion to nullify the law is so well established that your attempt to bandy this condescending crap is an insult to this forum.
More importantly, if you should ever actually say that stuff in court, a cranky judge may find a reason to find you in contempt. Which is no fun.
Wow, indirect threats too, straight out of the fascist playbook.
My money is on both. If you think I don't know that copping to being informed of jury nullification might lead to contempt charges (a thoughtcrime for a contempt the court system in this country richly deserves), you're smoking a bit more than fish, turkey. Further, it is indeed ironic that the first instance of jury nullification involved a case in which Quakers were accused under an unjust law. The jury refused to convict and were deprived of food and water for days. Thankfully, they stood their ground. I suggest you stick with horses for they'll agree with you every time.
But really, the ad hominems in your screed are a bit much. Fascist? Clueless? Complicit? Threats? Crap? Is this your standard reaction to somebody who disagrees with you?
And please don't attribute motives when there aren't any there. I do get a little impatient sometimes, because I feel like an engineer listening to somebody who believes that they have invented a perpetual motion machine. It's just that laymen think the law is a lot more straightforward and simple than it is. It has never been simple, in fact in the old common law pleading days it was far, far worse.
But somehow folks who would never dream of trying to rebuild their car engine or operate on their dog think that they can practice law.
The law may not be simple, but justice is.
Have you seen those "Even kids know..." commercials from Ally Bank?
Truck
Pony
Bike
Hide
Eggs
Automated
You don't need to be a lawyer to understand fairness and decency, regardless of how many layers of legal slop has been piled over it.
Perhaps that's one of the key reasons we have juries - to help keep the lawyers from losing sight of the justice forest behind all those legal trees.
Justice is simple only until some sharp cookie decides he can manipulate people.
And there will always be sharp cookies with a deficiency in their sense of fair play. Just as there will always be tough guys who think they can muscle the weak out of something. Not all of them are lawyers -- some of them just hire lawyers.
It's better to circumscribe them with statutes and case law than it is to kill them out of hand. That can get messy.
My point is that you don’t need to be a highly-trained legal expert well-versed in the letter of thousands of pages of complicated statutes to understand that muscling the weak out of something is unfair and unjust.
... and that includes the strong government using the law to muscle a weak citizen out of their fundamental human right to self-defense as articulated in the Second Amendment, for example.
Like I said, I wish justice were simple. As long as there are crooks and strongmen — in AND out of government — it won’t be.
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