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ElcomSoft Jury Denied Access to full DMCA Text
ryochiji writes "Wired Online is reporting in this article that the jury in the ElcomSoft trial requested access 'to the full copy of the DMCA to assist in their decision-making' but was declined. 'Instead, [Judge] Whyte said he would answer specific questions jurors had about portions of the law they must consider in determining ElcomSoft's guilt or innocence.' I don't know if this is common practice in the court of law, but it somehow doesn't sound right ..."
...it's generally done on the grounds that the law is so obtuse that the average juror wouldn't understand it...
Kind of makes you wonder why they don't simplify the law a little, don't it?
fija (fully informed juray assoc) says that its NOT the judge's job to interpret the law. even though most judges THINK that's the case.
;-(
in fact, its the SOLE job of the jury to do that. the judge has NO RIGHT to judge the law. that's what the jury is for! in cases where the law is too harsh or should not be applied, the jury has the constitutional right to OVERRIDE ANY LAW IT WISHES on a case by case basis.
of course any juror who lets on that he KNOWS this will not pass voire dire. catch 22. sigh
fija.org is well worth the read. its scary to see which states are fija-friendly and which are not (most are not).
--
"It is now safe to switch off your computer."
Notice he was arrested on US soil? And didn't you watch the troops march on Noriega? US law extends as far as US bombers will fly.
Goddamn, but that is just dumb. Your first point is completely wrong, and your second point shows that you didn't even understand the topic.
Juries get to read large chunks of the law all of the time. They usually receive an interpretation of the statute from the judge as well. The two are not exclusive. If you ever sit on a criminal jury, you may find yourself making decisions as to which statute best fits the crime--all from the statutes as they are written.
Your second point claiming that "the jury is only allowed to decide the facts of the case within the law as it is written," is true (whatever the libertarians have to say about it) but beside the point. You're way off in left field with it. There is no evidence whatsoever that the jury is trying to decide whether or not the law is just--rather they want the text of it to see whether or not the DMCA applies in this case. That is a common request and rarely turned down.
In a few years after you graduate high school you will be called for jury duty (god help us) and find out what it is really like.
IAAL, and your explanation snaps me back from my befuddlement at this story. I couldn't figure out what was going on until I remembered "jury instructions". Yes, of course, jury instructions are prepared with the input of both parties, in what is supposed to be plain english, and are subject to appeal. From working on an appellate court, believe be these instructions are gone over with a fine-tooth comb. If the DMCA is improperly representaed, or its content changes because of the result in an intervening case, the verdict (guilty -- innocence doesn't typically get appealed) was be vacated and remanded for retrial.
:)
Translating the law into jury instructions is routine. I'd probably appreciate it if I were a juror! It's not that statutes can't be understood by the layperson, it's that their meaning depends on carefully chosen terms of art (like "willfully" as a specific and perhaps surprising legal meaning that would be spelled out for the jury) and precedent from this or related statutes. Thus a statute usually must be researched and interpreted to apply it, and interpretion is not normally the province of the jury.
In short, if anyone things this is a DMCA conspiracy it's not, and if they thinks it's unfair to the people, it's not. Folks the ACLU would otherwise be apeshit (to use the technical legal term).
I disagree on "Deciding whether the law is okay or not is for another court." -- trial courts declare statutes invalid as easily as any other court. Their decisions are reviewed by the appellate court de novo, which means the trial judge gets no deference, the theory being that any judge can evaluate the law regardless of whether they were present at the trial. Questions of fact may well require deference to the trial judge, who saw the witnesses testify. On the other hand, the trial court is bound by precedent, the rulings of higher courts. Once the upper court decides something, lower courts do not get to second-guess it.
Lastly, there is one way jurors do pass on the valdity or even sense of a law or a particular prosecution, called jury nullification. Nullification is where the jury basically acquits where it should have convicted. This "power" (it is not technically legitimate) has been used for good and ill, and has no lasting impact on the law. But once a valid acquittal is entered, retrial is normally (not always) barred by double jeopardy. (Notice how I have to ut siclaimers all over the place -- the law is complicated, and not just a matrix of arcane rules. Rigid, easy to understand rules often sacrifice justice in the name of clarity. Notice also that I have trouble stopping writing once I begin.
My only concern about giving the jury the full text of the law is that there is a lot of text and they may or may not understand it all. Burying the jury in 100 pages of legalise can destract them from the task at hand. On the other hand, the lawyers involved in the trial focus on what they feel is important. What they feel important and what is important to applying the law fairly can be two differant things. Especially if your goal is setting precedent for future trials.
There is no insult in trying this case here. The basis rule is that if you violate the law of another country within their jurisdiction, they've got you. It is a potentially frightening aspect of the internet, but is merely an outgrowth of the law if you murder someone on foreign soil -- you could be prosecuted there even if that country's law were repugnant to American values.
ElcomSoft was knowkingly doing business in the states, in willful violation of the law. End of (jurisdictional) story.
Yes, it is good that the jurrors get a fine-combed interpretation of the law, reviewed by the defense attorney, prosecutor, and judge. But it is still most certainly necessary that they have access to the primary data -- the text of the law. To use an analogy, I may read a review article on the free radical theory of aging. The author -- an expert in the field -- has clarified things for me and given me a good general overview. But it is still necessary -- if I am to make an informed decision about whether or not (s)he's right, and to (for example) cite the studies that the author reviewed -- for me to go to the original papers (the primary data) and read them myself.
Having the jury "understand" the law through the instructions of the court alone simply introduces an extra unnecessary point of error into the process.
social sciences can never use experience to verify their statemen
It could be that (I'm not following the case) the Elcommsoft people are making a claim that the DMCA is a bogus piece of legislation or something. While I certainly feel for them, the job of the jury is not to evaluate the worth of the DMCA (I know someone's going to bring up jury nullification here, but that's insanely rare). The judge may be trying to prevent Elcommsoft from moving the emphasis from their guilt under the existing, passed-into-legislation law (which is what is at issue) to whether that law is just or constitutional or something (which is for the Supreme Court to decide, not the jury).
Go figure.
May we never see th
Burying the jury in 100 pages of legalise can destract them from the task at hand.
Speaking of which, does anybody know where this "100 pages" thing came from? Chapter 12 of Title 17, which is (I think) the relevant body of law, is only 13 pages long. Where did Ms. Glasner get her "100 pages" thing?
I write in my journal
In re-reading my original post, I found that I didn't really say what I mean in the third paragraph. What I meant to say is this: juries in criminal cases are almost always concerned with questions of fact. Did Person X do such-and-such? Did Person X do such-and-such in such-and-such way? The judge gives the jury instructions on which facts have to be demonstrated in order to return which verdict. It becomes a set of if-then propositions. If Person X did such-and-such, in such-and-such way, then return a verdict of "guilty."
Why, exactly, the jury asked to see a document-- it's not entirely clear which document-- we may never know. They should not, if they've been adequately instructed, have to refer to the law at all.
That's what I really meant to say. I think you understood what I mean, but I wanted to clarify anyway.
Your point on nullification, though, is well taken. But isn't it safe to say that a trial jury isn't supposed to be concerned with questions of law and procedure, but rather the facts of the case? Questions of law and procedure are usually reserved for the appellate courts, right?
I write in my journal
From The Juror's Handbook as published by Fully Informed Jury Association
The power of the Jury to judge both the facts of the case at hand and the law itself was widely recognised and indeed lauded by the founders of this nation. I've got some documentation on it, but don't really feel like looking further at the moment. I'm sure others on this thread will.
This is an ex-parrot!
that sounds like a very reasonably point. Do the rules and regulations of the courtroom explicitly state this? What reasoning is offered in the existing body or law or in defense of the practice as it stands. As legal contracts and rights-licensing issues become more invasive in today's society, should 'bad law' (or contract or any other legal document) be written so badly as to be indecipherable to a group of 12 mature adults? I'm not suggesting that we make every contract a dick-and-jane story for the lowest-common denominator, but can't we get contracts written in plain english. Is there a precident for this or somewhere in the juror's rules of conduct. Does someone explicitly say that the legal system can filter what amount of 'relevant' information gets passed through to the jury. ...just a thought
Laws are the rules of our society. And they need to be understood. Not just by the people that write them, but by the people who are agree to be governed by them.
I for one like to know what the government around me can do. I like to know how the leaders and programs I support are affecting my world.
I don't fear bad cops, I fear bad law.
(no disrespect to the good folks of defendbrooklyn.com. I lived there for a while and still love that place, but yeah it's a tough town some blue nights. fulton sq.=missing ya. this is a real bad cop )
"If I wanted your input on my pet project, I'd stick my hand up your ass and use you like a sock-puppet." - Muse
Actually, according to the founding fathers, jurrors were supposed to sit not only in judgement of the facts, but also of the law. Ref. to my posts above about jury nullification.
social sciences can never use experience to verify their statemen
As I noted somewhere else, the entire DMCA is only 59 pages long in PDF format. In other words, as is usual, someone was full of shit in claiming it was "over a hundred pages".
social sciences can never use experience to verify their statemen
he may be a bit brutish when enlightening us, but it does appear that he is explaining some of the aspects that many of us (myself included) are not presently aware. we're not necessarily here to critique his tone, I for one am more interested in his content.
"If I wanted your input on my pet project, I'd stick my hand up your ass and use you like a sock-puppet." - Muse
Your example is a good one. But a few Q's: Do you have expertise in the field, that you can interpret raw data correctly? Could I do it, too? Could any reasonably intelligent person do it and come to the correct conclusion? (One nice thing about science is that there is absolute truth. Not so law. I have some background in both fields.)
:).
Laws also require expertise to interpret, and law school is tough for a reason. The discussions about statutory interpretation in the courts and in the academy are positively endless, and the correct approach is probably one of the most prominent topics in the law. (Judge Posner of the 7th Circuit has written some of the most accessible articles on this.) Laws often do not speak for themselves, and the result of 12 people on a jury coming each to a different private understanding of the law would be chaotic. I think allowing the jury to second-guess the lawyers and the judge -- who are more likely right -- "simply introduces an extra unnecessary point of error into the process" with no compensatory gain.
Whether the DMCA is valid, incidentally, depends not on whether it is a wise or just or efficient or necessary law. The only question is whether it's valid and constitutional, period. The people who haggle about wisdom and justice and efficiency and necessity are called legislators. As for its interpretation, in the present case it's pretty simple unless I haven't followed the case closely enough.
Regardless of expertise, and perhaps more compelling, there is a basic procedural rationale. Judges have to explain their analysis of the law on the record when denying challenges, and approve jury instructions. These things are on the record and available for review. The private judgments of a juror are not. The record is this huge bound paper thing that anyone can see, and which goes up on appeal.
I've actually been involved (as an advisor, not the decisionmaker!) in this process of judging the validity of a law, and it can be tough. You're welcome to read the decision: United States v. Kenney. It was some of my most challenging work, and the decision was widely followed by courts in other circuits so I guess the logic wasn't too bad. BTW, while Kenney may appear to be a gun control case, it's really not; the topic is the generic power of Congress to enact laws under the Commerce Clause.
If "I" the judge am wrong I will have exposed my reasoning for all to ridicule, and exposed myself to reversal by the Supreme Court (which, believe it or not, happened once -- the judges there ignored my advice, although I concede I was right partly by luck
If jurors have questions about the law, they're free to ask the judge at any time.
Jurors: Can we see the law?
Judge: No.
Donate background CPU time to fight cancer.
Jury nullification is not part of the law, and it is hotly contested whether it was originally intended or is even a good idea (I doubt both). It is reversible error, for example, for a lawyer to explicitly or implicitly ask a jury to nullify. The power to nullify is more a byproduct of the unreviewability of most acquittals. because the jury is effectively a black box.
...it's generally done on the grounds that the law is so obtuse that the average juror wouldn't understand it...
So if a jury can't understand it enough to render a decision... how is the average person supposed to be able to understand it enough to avoid infringing it?
But isn't it safe to say that a trial jury isn't supposed to be concerned with questions of law and procedure, but rather the facts of the case? Questions of law and procedure are usually reserved for the appellate courts, right?
:).
I think I see the gap here -- recall that there's a jury and a judge. Q's of law always go to the judge, always. The judge rulings in turn are reviewed by the appellate court, but that judge always gets first crack at it (saving the appellate court some research labor, BTW
The jury's decisions, meanwhile, are not really reviewable except when their conclusions are essentially irrational, or there's some sign of jury tampering, and some other misc. I'd have to look up. This can be kind of ugly, such as when juries acquitted people of murder because they didn't like federal antilynching laws. Unreviewable.
Yes, but I'm not proposing we elimiante the lawyers, judges, and prosecutors instructions -- but simply that we also give the jury the primary data, so they can ref. back to that.
And jury nullification is the right of the jury, so they can decide whether the law is right/wrong.
social sciences can never use experience to verify their statemen
Actually, most of the founding father's saw the need for jury nullification as the last measure to force the gov't to obey its own constitution. It is a necessary product of the unreviewability of an acquittal, thus a jury's right.
Jury nullification has been used for many good things throughout history. For example, to void fugitive slave laws, or to avoid convicting people at the end of the unjustified prohibition on alcohol. Its also been used in backwards ways, for example to acquit OJ Simpson. But the point is, it is a necessary check on the gov'ts power. If the gov't can't even convince 12 ppl that something should be illegal, then a person shouldn't go to jail for that.
social sciences can never use experience to verify their statemen
Check this out. Disclaimer: I didn't know anything about it, but this is best hit I got on Google. It's a fascinating topic that I knew nothing about.
Why, exactly, the jury asked to see a document-- it's not entirely clear which document-- we may never know. They should not, if they've been adequately instructed, have to refer to the law at all.
But isn't it safe to say that a trial jury isn't supposed to be concerned with questions of law and procedure, but rather the facts of the case?
Let's start at the end and work our way back. Trial juries tend to focus on facts rather than law, but every law has its first trial. This is the DMCA's first trial in more ways than one. It is perfectly valid to examine a law that has never been examined. There is no precedent to be guided by here, only a corporate lobby. I'd want to examine the law myself.
I'll tell you why the jury asked to read the actual law: they don't understand it. They understand murder, theft, robbery, even tax evasion. It shouldn't take much in the way of instruction to get a jury up to speed on the differences between murder, manslaughter, negligent homicide and the like. None of these folks, however, have given the DMCA any thought at all, even if they have ever heard of it. It would be irresponsible to not do their utmost to understand the law in question, up to and including reading it.
Only when they understand what the law actually prohibits and accept that it is legitimate can they even begin to wonder if person X violated it in such and such a way. The DMCA doesn't have the thousands of years of precedent that murder statutes have, and it certainly has a questionable moral leg to stand on. Its legitimacy needs to exist in the hearts of the jurors before they can consider giving it its first precedent.
All that, mind you, is before the jury asks itself if it wants Russia applying its domestic laws in, say, Michigan.
I spent a year in Iraq looking for WMD and all I found was this lousy sig.
And jury nullification is the right of the jury, so they can decide whether the law is right/wrong.
Well, not really. As MacAndrew said up-thread, nullification is unofficial at best, and has applied to both good and bad ends. There's really no way we can get rid of it-- the jury does return the verdict, after all-- but it's not really a "right" in any meaningful sense either. It's more like a loophole.
I write in my journal
All that, mind you, is before the jury asks itself if it wants Russia applying its domestic laws in, say, Michigan.
I was right with you up to this point. This issue is deader than dead. The crime of which these folks are accused was committed on US soil; they were arrested on US soil; they are being tried on US soil. The fact that they're Russian citizens is irrelevant.
If you were to commit a crime in Russia, you would expect to be arrested by Russian police officers, tried in a Russian court, and, if convicted, sentenced to a Russian prison. This situation is no different.
I write in my journal
Jurors: Can we see the law?
Judge: No.
Jurors: Can we go out for pizza and beers?
Judge: No.
Jurors: Can we play Pictionary?
Judge: No.
Jurors: Can we spend valuable time debating an issue that has no bearing on the verdict?
Judge: No.
See? The system works.
I write in my journal
I don't have time to really run this down, but here (U.S. v. Thomas) is a 1997 Second Circuit case with a good discussion of jury nullification. It has cites to Supreme Court decisions you can run down if you like, including to Sparf which jury nullification proponents often cite as having upheld jury nullification, when it did the exact opposite. I can only wonder how that is. I would be very interested in contrary evidence with appropriate citations.
In Thomas a juror was dismissed by the trial court on various grounds. The 2nd Cir. found this to be error on evidentiary grounds and remanded. The relevant section in full (U.S. v. Thomas):
A minor dissent, IMHO the O.J. Simpson criminal trial was an example not of jury nullification but juror and judicial fumbling. I saw some of the dissenting jurors interviewed and was convinced the defense snowed them into enough confusion to acquit. All of the jurors were subjected to a grueling trial of ridiculous length -- in the real world it would have taken 2 weeks with no sequestration. That's just an opinion -- it might have been nullificiation or, for all I know, Simpson could not have been shown guilty beyond a reasonable doubt in the most orderly of trials. Hey, maybe he's innocence, though he did lose the civil trial.
I addressed the nullification issue elsewhere here.
Nicely summed up.
As for this being a "virgin law," I'm not persuaded the jury needs to see it as a matter of course. On the other hand, the court can decide to give it to them if it likes. If the jury instructions are botched, that can be reviewed later, though note that the defense probably signed off on them.
As to why the jury asked to see the statute, that's speculation. Ask them after they're done.
I can't even believe the amount of insane misinformation out there on both jurisdiction and jury nullification. I just wasted a fair amount of time on the latter because I had to page through all these partisan pages all uselessly (mis)quoting each other before I finally switched to real legal sources to find real primary material -- which none of those sites apparently ever read. The rules and their rationales are so simple I have to figure some of these people are lying and others are accepting what they want to hear. I mean, really, this legal stuff is strictly 1L.
Two out of three ain't bad. Russian programmers wrote a program in Russia. One of them showed up in the US for a conference and got arrested. He hadn't even had time to jaywalk here. What had Skylarov, himself, done in the US to be arrested? That is not a dead issue by a long shot. ... these folks are accused of a lot of things, but one man was thrown in jail. What had he done in the US? Once the jury decides if the DMCA is legitimate enough to apply, it needs to remember that it doesn't cover actions in Moscow.
I spent a year in Iraq looking for WMD and all I found was this lousy sig.
I'm sorry, you are dead wrong. I state it starkly because so many have this wrong.
Part of the evidence in the case was that Elcomsoft sold the product to several Americans, apparently with no precautions to respect American law even after being warned, effectively breaking our law on our soil. Was the U.S. wise to bring this case? Perhaps not. Is Elcomsoft guilty? I don't know. Did the U.S. have the authority? Probably.
Critically, ElcomSoft did challenge jurisdiction (esp. read the briefs and judge's decision). Elcomsoft raised unconvincing grounds (IMHO, and the judge's) and lost. Any challenge to jurisdiction here should focus on the questions raised in the briefs and the court's answers. For the purposes of this case, any other challenges Elcomsoft could have raised might have been great but have been waived. The judge may have been wrong, but that doesn't mean that jurisidiction is this sort of case is at all difficult to conceive.
I'm not defending here the substance of the DMCA or the law on jurisdiction, just describing.
Don't forget Skylarov is not on trial; his charges are apparently dismissed. His arrest was probably valid, but I'm not happy at all about the detention, as a matter of policy and civil liberties. If his arrest was illegal he could sue for damages, though I suspect he may not want to hang around in the U.S. after what happened. I wouldn't.
Actually, according to our founding fathers, Jury Nullificaiton was and is a right. This can easily be seen by looking at statements by Alexander Hamilton, John Adams, Thomas Jefferson, and James Madison.
It is true that the most recent applications of jury nullification -- the acquittal of white's for crimes against blacks -- have been regrettable. But that is not a problem with jury nullification, but rather with jury selection. Besides, the benefits jury nullification can provide far outweigh its drawbacks, in that it allows ordinary people to prevent the government from forcing draconian laws on any individual citizen. Fugutive slave laws were wrong, and were rightfully disregarded by juries. Likewise with laws during prohibition. And defamation laws to which the "truth was no defense".
Even if it is, as you say, a violation of a jurror's "oath", that oath is irrelevant. Just as contracts which call for violations of the law (i.e., a contract for murder) are illegal, so are any oaths which call for poeple to ignore what is right/wrong (in their best estimation) void.
social sciences can never use experience to verify their statemen
I fully agree with this statement, and answer the "if" clause in the affirmative. The juror has a duty to ensure that the law is appropriate as applied to the actions of the defendant (that is, the defendent is not being overcharged), that the law is Constitutional, and that the punishments allowed by the law are appropriate to the facts of the case. The judge has a duty to ensure that the law is upheld, and is acting within his duty to dismiss jurors during voire dire (sp?) if the judge suspects that the juror will not uphold the law. These are checks and balances which are wholly appropriate.
It should also be noted that the scope of a decision is very important. A law is not rendered moot by jury nullification - such nullification affects only a single case. Nor is a law rendered moot by the decision of a judge to overturn the law. That only applies to his court or district. Even if the Supreme Court declares a law unconstitutional, the prosecution may continue to bring cases under that law (though as a practical matter, such cases would be dismissed in every court in the land, and an overzealous prosecutor might find himself subject to a wrongful prosecution suit) as long as the law is on the books.
-- Two men say they're Jesus. One of them must be wrong. - Dire Straits
> The judge gives the jury instructions on which
> facts have to be demonstrated in order to return
> which verdict. It becomes a set of if-then
> propositions. If Person X did such-and-such, in
> such-and-such way, then return a verdict of
> "guilty."
If that is true there is no point in having a jury at all.
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
Is that seriously the best response you can manage?
I've been clear that I don't necessarily know what the rules should be, but I do know what they are right now. I actually went to a lot of trouble to try to explain it, instead of just calling someone a butthead and leaving it at that. "The jury has the right, NAY, THE DUTY" to do its job properly, not to go off on its "high horse" to undermine democratically enacted laws. That's the real insult to democracy, and you are the one with pretensions ("nay"?). If you are called to serve, remember to refuse to take any oath to uphold the law.
Well, I see you've fallen to copying-and-pasting your private Federalist Papers. Save bytes if not breath; here's a cross-reference.
If that is true there is no point in having a jury at all.
The point of a jury is to decide the facts. In any criminal case, one party is going to say X happened, while the other will say that Y happened. It is the jury's job to decide which of these things is true.
Well in advance of the jury's deliberations, the judge-- with input from both parties-- has decided the legal issues of the case. If X happened, then the defendant is guilty of the crime of A. If Y happened, then the defendant isn't. The judge delivers these instructions to the jury so they will know how to translate their finding of fact into a verdict.
In a jury trial, the jury decides the facts, and the judge decides the law. (Usually. Almost always.)
I write in my journal
Yes, I figured these would be your true colors. I think you'll find the system less corrupt if you engage it more, it's not so simple as some vast conspiracy to co-opt the government.
Jury foreman Dennis Strader said the jurors agreed ElcomSoft's product was illegal but acquitted the company because they believed the company didn't mean to violate the law.
Ignorance is not an excuse is the old expression, true, but it's not complete -- you still have to break the law. Here, willfulness was required, a conscious violation of the law. The jury appears to have decided the prosecution failed to prove this element, esp. where the law was confusing. A normal case, no nullification.
Judge: No.
Jurors: Can we read the transcript of the trial?
Judge: No.
Jurors: Can we read about some relevant piece of evidence?
Judge: No.
Jurors: Can we deliver a non-guilty verdict?
Judge: No.
Yeah, works real well. So long as one is never on trial under the DMCA with this judge, that is. I see no reason why a judge saying no to the first would not also say no to the others as well.
Dyolf Knip
"In the instant case, the defendants do not directly challenge the proposition that a juror's refusal to follow the court's instructions on the law may be a proper basis for removal under Rule 23(b)"
That's from your link. In other words, the defense didn't even bring up the point that jury nullification is a right, rather that the dismissal of the juror was unjustified on other grounds. It's quite easy to bash a position that wasn't even given a fair representation by any of the parties. As the defendents were given what they wanted (new trials) no further challenges would arise from this anyway so it was a neat opportunity to say whatever the judges wanted safe from review. The correctness of it is almost beyond the point. They were safe in shooting their mouth off against one of the most profound inconveniences for a judge, the ability, the right, of a jury to ignore the high and mighty and not just decide the facts but the justice of the law as well.
Whether this awesome power of the jury has been misused at time to provide injustice is absolutely irrelevant to the existence or inexistance of the right. If the bill of rights were held under the same standard, what would happen to free speech after the klan marched in Skokie, Penthouse put an illustration of a girl in a meatgrinder in its pages and other insults to good taste and good sense.
Is there any of the rights enumerated in the Bill of Rights that has not created a bad result some time during our history (OK, amendment 3 but that's never come under test in any circumstance). In reality, the idea of malignant nullification nullifying jury nullification is profoundly unamerican and the decision you cite while giving the correct result (new trials) uses aberrational logic and would not stand review.
Now I'm not a judge, but it's just unamerican to nullify a right of the people by the bad exercise of that right by some people. If that logic holds, you might as well use the Constitution as toilet paper because it wouldn't be worth a damn.
Mistaken on history? Did the jury nullifications of Peter Zenger and William Penn just not happen?
Mistaken on philosophy? How can you be mistaken on philosophy? That's just stupid. You might have a different philosophy, you might wrongly describe a particular philosophy but to be mistaken on philosophy just isn't in the nature of the beast.
Mistaken on the law? Well, that may or may not be. A lot of people fall on either side of the question and case law has been cited on both sides.
Mistaken on spelling? Well yes, and what does that make you? A spelling nazi, a specific kind of slashdot low life.
The Thomas case the defense attorney did not defend nullification because it would have been borderline malpractice to do so. Instead the defense focused on whether the juror had been caught legitimately. If jury nullification were acceptable, there would be no need to address how the juror was caught. The court decided to restate (not change) the law concerning nullification all the same, with the intent of making clear that dismissing jurors for threatening nullifciation is valid, even compelled; just not this juror. This statement is not dicta, it is binding law for the courts of the Second Circuit (I worked for the Seventh Circuit). This juror did not get off on "other grounds," rather he was likely guilty but there was a flaw in the proof that endangered jury privacy. This is like a drug dealer getting off because he was caught in an illegal search. He's still a criminal, but other principles of justice have to be honored as well. Drug dealing is still just as illegal as before.
Their denunciation could not have been clearer (this is hot language for a court, you see):
And for other questions of con law, there is plenty written on them. And that's just it -- nothing in favor of jury nullification is anywhere in the case law, except to recognize that it happens sometimes and should be prevented whenever possible.
I state all this because I do want to see that this is correct state of the law, stated many times and many places. If you can show me a holding that goes the other way, please do. I glanced at the handful of cases cited by the FIJA and the like, and they were not at all supportive.
Actually, according to our founding fathers, Jury Nullificaiton was and is a right. This can easily be seen by looking at statements by Alexander Hamilton, John Adams, Thomas Jefferson, and James Madison.
... it is not a right.
Nonsense on the law and the history. Cites? And even if you could find a "statement" remember it is an opinion, not the law. If you want to know what the law says, read the law. Jury nullification is on page ??.
Did the jury nullifications of Peter Zenger and William Penn just not happen?
They happened, and that does not mean nullification is not a right. The other day someone was shot in court; this did not mean shooting in court is a right.
History: Note that the Zenger trial was in 1735. The Penn trial in 1670. The American Revolution began in 1776. This is 2002. Aren't your examples a little dusty, as they considerably predate both the Constitution and the United States?
It is true that the most recent applications of jury nullification -- the acquittal of white's for crimes against blacks -- have been regrettable. But that is not a problem with jury nullification, but rather with jury selection.
Nullification was regrettable. Jurors who followed the law would have gotten these cases right.
Besides, the benefits jury nullification can provide far outweigh its drawbacks, in that it allows ordinary people to prevent the government from forcing draconian laws on any individual citizen. Fugutive slave laws were wrong, and were rightfully disregarded by juries. Likewise with laws during prohibition. And defamation laws to which the "truth was no defense".
These supposed benefits are all well and good. NONE of it shows that nullification is a right, just that "it happens."
Mistaken on spelling? Well yes, and what does that make you? A spelling nazi, a specific kind of slashdot low life.
Well, you did do better on it this time.
There is one point here: Nullification is not a right. If you think it is, show me WHERE it says so. You can't, because
Hell, considering the number of women who marry for financial reasons (a 'la Joe Millionaire) - then technically every woman who married a man in part because of how much he makes is having sex for money...LOL
as my married friend joked when I told him he should be glad he doesn't have to pay for sex anymore..."oh, you pay...you pay...every day in many different ways, you pay...LOL"
RB
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ah honey, we're all resplendent - Bill Mallonee
Dougherty was cited at you elsewhere, you didn't bother to address it yet. Until you do, why waste time looking for more cites?
You ask where it says that nullification is a right.
here is a court filing which includes the following informative paragraphs.
[CURRENT CONSTITUTIONAL AUTHORITY FOR JURY NULLIFICATION:
The Constitutions of Maryland (Art. XXIII, entire), Indiana (Art. I, sec. 19), Oregon (Art. I, sec. 16), and Georgia (Art. I sec. 1, para. 11, subsec. A), currently have provisions guaranteeing the right of jurors to "judge the law"; that is, to nullify the law. For example, the Georgia Constitution says: "In criminal cases, the defendant shall have a public and speedy trial...and the jury shall be the judges of the law and the facts." Attorneys in Georgia and Indiana are able to request nullification instructions from the judge to the jury and generally receive them, and are sometimes able to argue the law. Twenty states currently include jury nullification provisions in their Constitutions under their sections on freedom of speech, specifically with respect to libel and sedition cases: Alabama (Art. I, Sec. 12); Colorado (Art. II, sec. 10); Connecticut (Art. I, sec. 6); Delaware (Art. I, sec. 5); Kentucky (Bill of Rights, sec. 9); Maine (Art. I, sec. 4); Mississippi (Art. 3, sec. 13); Missouri (Art. 1, sec. 8); Montana (Art. II, sec. 7); New Jersey (Art. I, sec. 6); New York (Art. I, sec. 8); North Dakota (Art. I, sec. 4); Pennsylvania (Art. I, sec. 7); South Carolina (Art. I, sec. 16); South Dakota (Art. VI, sec. 5); Tennessee (Art. I, sec. 19); Texas (Art. I, sec. 8); Utah (Art. I, sec. 15); Wisconsin (Art. I, sec. 3); Wyoming (Art. I, sec. 20). Of these, Texas, Delaware, Kentucky, North Dakota and Tennessee say that the jury is the judge of the law in libel and sedition cases, "as in all other cases." [Source: Alan W. Scheflin, "Jury Nullification: the Right to Say No", Southern California Law Review, 45, p. 204 (1972). This list has been updated to 1996.]
When there is division amongst the states on an important issue, trial judges often look to federal authorities for guidance, and such is instructive in this case. Modern Federal Jury Instructions (Sands, Siffert, Loughlin & Reis, Instruction 4-2) suggests that juries should be told that it is their "duty to acquit the defendant" if they harbor a reasonable doubt, however, rather than instruct juries that they have a corresponding "duty to convict," i.e., "must" convict if they are satisfied of the defendant's guilt beyond a reasonable doubt, the treatise recommends that juries be advised that they "should vote to convict: if the government has carried its burden (leaving a jury to conclude that it has the authority to nullify even in the absence of a reasonable doubt) [and our own federal district courts agree on this prerogative of the jury, see also, e.g., United States v. Will L. Dawson, and Derrick Termail Willis, Criminal Cause Numbers: IP 95-0064M-01-02, citing approvingly Beaver v. State, 236 Ind. 549, 141 N.E.2d 118 (1957) to the effect that "Article I, Section 19 of the Indiana Constitution provides that 'in all criminal cases whatever, the jury shall have the right to determine the law and the facts.' However, jurors should be bound by their conscience and their oaths, and not act arbitrarily, capriciously, upon a whim or prejudice.] While logic would seem to dictate that a corollary obligation be imposed on jurors, it is reversible error to charge that the jury must explain their doubts ever since the ordeal of Edward Bushell and the Penn jury hereinabove.
The argument may or may not be persuasive to you that it is right, the listing of state constitutional clauses explicitly answers your question. Yes, jury nullification is recognized in law as a right of the people.
Now the question remains on the federal level whether it is a right. But rights are not granted by the Constitution, they are recognized. Limitations on rights and governing powers are granted by the US Constitution. So now that we've established that nullification *does* exist as law and is a right of the people, does the US Constitution eliminate that right?
Now I ask you, where is it written?
Actually I looked at it. You've wrong about its holding, as are the rest of the nullification nuts. Also, it's just a circuit court opinion. Feel frre to prove otherwise; you can't.
Why waste time looking for more cites? Because you might learn somthing valuable.
The question is whether those judges who have stated their opinions are stating constitutional ones.
You've retreated (silently, true) from the proposition that jury nullification is not supported in law to the idea that it is not supported in federal law.
If you would either assert that the Constitution (federal or state) grants rights (thus exposing you for a fool who doesn't understand our legal tradition at all) or demonstrate where these Constitutions which recognize jury nullification are overridden by superior Constitutional authority (not mere judicial assertion).
The judge doesn't have the right to just make stuff up. He has to base his decisions on some Constitutional text even if it's merely to override some 9th or 10th amendment unenumerated right. So far we've got nothing in the Constitutional text, merely judicial opinions that rest on air, and thus are illegitimate constitutional interpretation.
All you've described so far is legislating from the bench. A Constitutional support for the opinion you've cited wouldn't hurt what's left of your case.
Re the defendent in the case, if you needed attractive defendents to properly establish constitutionality than Roe v. Wade would be illegitimate as would the Miranda decision. Throwing mud at a particular defendent in order to cast doubt as to constitutionality again makes me wonder as to your actual bar status.
Beyond that, the cite that I gave wasn't anything more than a listing of relevant State Constitutions. Are you claiming the cites are erroneous? No? Then you're an ass who is fast losing credibility.
Yes, the federal record is a bit weaker for the nullification case than the state record in the cited constitutions but you went out of your way to make broad claims that nullification simply didn't exist in current law (not federal law, current law period).
The thing that convinces me that nullification does exist on the federal level is that jurors are instructed that they must find defendants not guilty based on doubt but if there is no doubt they are not similarly instructed that they must convict if the evidence leaves no doubt in their mind. They are only instructed that they "should" convict. That, and the fact that nobody seems to have been accused of a violation of their juror's oath and prosecuted for such violation leads me to believe that the anti-nullification case is all bluster and noise, signifying nothing.