Judge Bans Handing (Factual) Pamphlets To Jurors; Raising First Amendment Issues

from the apparently-we-don't-want-fully-informed-juries dept

Radley Balko points us to the news that a judge in Florida has banned the distribution of certain flyers at or around the courthouse. Apparently, there's a group called the Fully Informed Jury Association (FIJA) -- which seems like a pretty good idea. Why wouldn't we want fully informed juries? The group has been handing out pamphlets to jurors which basically say that the jurors should vote with their conscience and not feel pressured into voting against what they believe. Seems like pretty standard stuff.

However, it looks like Chief Judge Belvin Perry doesn't like fully informed juries. He signed an order barring the group from handing out their pamphlets... raising all sorts of free speech and prior restraint questions. In order to try to get around the prior restraint question, Judge Perry stated that this "restriction upon expressive conduct" was "necessary to serve the state's compelling interest in protecting the integrity of the jury system." The judge clearly knows he's treading in free speech/prior restraint waters in specifically noting that it's a restriction of expression and calling out the "compelling interest" line. Of course, you can't just say there's a compelling interest. There actually has to be one, and I'm struggling to see how better informing a juror of their rights as a juror could possibly be about manipulating a jury or would harm the integrity of the jury system. Wouldn't you think a juror who better understand what being a juror means increases the integrity of the system?

It's almost as if the judge is admitting that they want uninformed jurors who don't know their own rights.

It sounds like the group is fighting back, so hopefully the ban will soon be reversed and the judge will be given a refresher course in the First Amendment and free speech.


Reader Comments (rss)

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    average_joe (profile), Feb 7th, 2011 @ 8:30am

    The group has been handing out pamphlets to jurors which basically say that the jurors should vote with their conscience and not feel pressured into voting against what they believe. Seems like pretty standard stuff. *** Of course, you can't just say there's a compelling interest. There actually has to be one, and I'm struggling to see how better informing a juror of their rights as a juror could possibly be about manipulating a jury or would harm the integrity of the jury system. Wouldn't you think a juror who better understand what being a juror means increases the integrity of the system?

    Jurors are not supposed to "vote with their conscience," and it is incorrect to state that that is their right. They are supposed to vote based on the facts in evidence and the law. To promote otherwise would certainly "harm the integrity of the jury system." That's all it would do. Pretty standard stuff.

     

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      Anonymous Coward, Feb 7th, 2011 @ 8:36am

      Re:

      In the UK at least the jury has the right to vote innocent if they disagree with the law. Surely you have a similar system?

       

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        Josh in CharlotteNC (profile), Feb 7th, 2011 @ 10:13am

        Re: Re:

        In the UK at least the jury has the right to vote innocent if they disagree with the law. Surely you have a similar system?

        Yes, the term is called jury nullification. From my understanding (IANAL) however is that the concept has been weakened considerably. Prosecutors and plaintiff's attorneys can get a juror removed if they can show that the juror is intending to do it. Neither judges nor the defense can actually mention that a jury has that power.

         

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          Christopher (profile), Feb 8th, 2011 @ 5:57am

          Re: Re: Re:

          Someone should challenge the removal of the jurors for that. The Founding Fathers SPECIFICALLY said that if the people disagree with a law, they do have the right to go the route of nullifying it by refusing to reach a verdict and/or declaring the person in question who violated the law innocent.

           

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            ltlw0lf (profile), Feb 8th, 2011 @ 12:57pm

            Re: Re: Re: Re:

            Someone should challenge the removal of the jurors for that.

            If every juror, during the voir dire process, announced that they believed in the concept of jury nullification, the courts would have to stop removal of jurors because there wouldn't be any jurors left. In order to do that, you have to educate the jurors, using some sort of leaflet or brochure which educate jurors of their rights and responsibilities...exactly what the judge is prohibiting here.

            As far as I am concerned, if judges can change the law via judicial decree...jurors should be able to do the same via jury nullification. Yet another example of politicians (in this case, judges) removing checks and balances built into the system to further their own short term greed.

            One case I sat through the voir dire process on, the judge threatened to fine a juror for contempt of court, and removed the whole jury pool, because the juror announced that they believed every juror had the right to practice jury nullification. After that case, I became educated on what jury nullification meant. While I don't think I'd mention it myself during voir dire, unless pressed, I do believe in it.

             

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      Rich, Feb 7th, 2011 @ 8:37am

      Re:

      Completely untrue. The founding fathers considered jury nullification a necessary fourth check and balance to the other three in our government.

       

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        Anonymous Coward, Feb 7th, 2011 @ 8:43am

        Re: Re:

        You know what happens when you give morons too many choices?

         

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          Rich, Feb 7th, 2011 @ 8:45am

          Re: Re: Re:

          So, what you're saying is, because there are people like you in the world, the rest of us shouldn't be allowed a choice?

           

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          Anonymous Coward, Feb 7th, 2011 @ 9:04am

          Re: Re: Re:

          If the juries are morons then the problem isn't the existence of jury nullification and giving them more choices, the problem lies with the fact that they are morons and hence are unable to properly evaluate evidence to come to a reasonable conclusion in the first place. Allowing them to evaluate evidence and come to conclusions based on that evidence requires the assumption that they are not morons and hence they are intelligent enough to rationally exercise jury nullification if they see fit.

           

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          Anonymous Coward, Feb 7th, 2011 @ 9:34am

          Re: Re: Re:

          Yeah, you get Governments!

           

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        average_joe (profile), Feb 7th, 2011 @ 8:44am

        Re: Re:

        Completely untrue. The founding fathers considered jury nullification a necessary fourth check and balance to the other three in our government.

        First of all, citation please. Secondly, even if the Founding Fathers were for jury nullification, that does not mean someone today has a First Amendment right to stand outside the courthouse and promote it.

         

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          Rich, Feb 7th, 2011 @ 8:46am

          Re: Re: Re:

          Um, that is the very definition of the 1st amendment.

           

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          RD, Feb 7th, 2011 @ 8:55am

          Re: Re: Re:

          "First of all, citation please."

          http://www.isil.org/resources/lit/history-jury-null.html
          http://www.foxnews.com/story/0 ,2933,163877,00.html
          http://www.jurybox.org/

          Jurors should acquit, even against the judge's instruction...if exercising their judgement with discretion and honesty they have a clear conviction the charge of the court is wrong.
          -- Alexander Hamilton, 1804


          It is not only the juror's right, but his duty to find the verdict according to his own best understanding, judgement and conscience, though in direct opposition to the instruction of the court.
          --John Adams, 1771


          I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution.
          -- Thomas Jefferson, 1789


          It will be of little avail to the people that the laws are made by men of their choice, if the laws are so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they... undergo such incessant changes that no man who knows what the law is today can guess what it will be tomorrow
          -- James Madison


          "Secondly, even if the Founding Fathers were for jury nullification, that does not mean someone today has a First Amendment right to stand outside the courthouse and promote it."

          Wow are you serious?? That is EXACTLY what the First Amendment is for Jesus, its like you ONLY see things from the Govt point of view to the ABSOLUTE EXCLUSION of any rights of the people.

          You are not only too stupid, but too lazy to do a 30 second google search, as well as willfully ignorant (and refusing to learn) basic constitutional concepts and laws, to be a lawyer.

          Now please GFY and FOAD.

           

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            average_joe (profile), Feb 7th, 2011 @ 9:01am

            Re: Re: Re: Re:

            You are not only too stupid, but too lazy to do a 30 second google search, as well as willfully ignorant (and refusing to learn) basic constitutional concepts and laws, to be a lawyer.

            Now please GFY and FOAD.


            See, this is the kind of abuse I receive systematically on techdirt. I have an opinion that differs from the herd, and I'm treated like shit because of it. I was going to respond to your points, RD, but then I got to the end of your post and realized that you don't want to have an honest, open discussion. You just want to hurl insults. You are not advancing the conversation. You are destroying it.

             

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              Michael, Feb 7th, 2011 @ 9:06am

              Re: Re: Re: Re: Re:

              Welcome to the internet.

              I don't think his comments were in line with your comments today, but those are the breaks.

              I'd like to hear your responses.

               

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              The Groove Tiger (profile), Feb 7th, 2011 @ 9:09am

              Re: Re: Re: Re: Re:

              I was going to respond, but now I don't wanna!

               

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                average_joe (profile), Feb 7th, 2011 @ 9:35am

                Re: Re: Re: Re: Re: Re:

                Do you have anything to add to the conversation, or are you here simply to spout abuse?

                 

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                  The Groove Tiger (profile), Feb 7th, 2011 @ 10:59am

                  Re: Re: Re: Re: Re: Re: Re:

                  Help. Police, Murder.

                   

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                  The Groove Tiger (profile), Feb 7th, 2011 @ 11:02am

                  Re: Re: Re: Re: Re: Re: Re:

                  But hey, I guess it's not abuse when you're doing it ;)

                  Like calling people in TD herd animals or claiming you're going to "rip someone a new one? ;)

                   

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                    Bruce Ediger (profile), Feb 7th, 2011 @ 9:23pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    Oh, yeah, and calling someone a "fucking idiot" (http://www.techdirt.com/articles/20110201/10252412910/homeland-security-seizes-spanish-domain-name- that-had-already-been-declared-legal.shtml#c1967) doesn't count as abuse either, especially when it comes from someone "average".

                    Consider the source: biased always towards authority and power, might makes right, any power is OK for authority to exercize as long as its used thoughtfully.

                     

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              Anonymous Coward, Feb 7th, 2011 @ 9:12am

              Re: Re: Re: Re: Re:

              RD stands for Real Dick. Are you new here? When has RD not used an abusive tone?

               

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                RD, Feb 7th, 2011 @ 9:36am

                Re: Re: Re: Re: Re: Re:

                "RD stands for Real Dick. Are you new here? When has RD not used an abusive tone?"

                I have not used an abusive tone many, many times. When its deserved. This was not one of those cases.

                "Nothing deserves more bile and invective and than that which strives to trample on our hard-won freedoms."
                -Me

                 

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                  average_joe (profile), Feb 7th, 2011 @ 9:37am

                  Re: Re: Re: Re: Re: Re: Re:

                  And what have I said to deserve your abuse today, RD? Nothing that I can tell.

                   

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                    Greg G (profile), Feb 7th, 2011 @ 10:13am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    Yea, RD's post was spot on, up until he launched the insults and the GFY and FOAD.

                    The quotes from the founding fathers seem to prove the point he was making, but he shoots himself down with his final comments.

                    Sad.

                     

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                      average_joe (profile), Feb 7th, 2011 @ 10:58am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      Agreed. I actually thought the quotes he pulled out from the FF were pretty cool. I didn't know they thought that.

                       

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                    Anonymous Coward, Feb 7th, 2011 @ 10:31am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    Don't let RD get you down. When he gets off his meds, he gets all cranky. His handlers will come back and make him take his pills, and then he will stop posting again for a while.

                    He is an angry, angry man.

                     

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                      average_joe (profile), Feb 7th, 2011 @ 11:33am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      I get cranky when I'm off my meds too. Nobody's perfect.

                       

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                      RD, Feb 7th, 2011 @ 12:23pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      "Don't let RD get you down. When he gets off his meds, he gets all cranky. His handlers will come back and make him take his pills, and then he will stop posting again for a while."

                      Well, since all I have ever taken is ibuprophen and the occasional cold meds, I cant really be considered to have been ON meds to begin with. Weak. Try a better insult next time.

                      "He is an angry, angry man."

                      Call it whatever you want, but when it comes to those who support the removal of my constitutional rights and the freedoms that were so hard-won for this country, I will pull the trigger myself. And you should too if you have any real principles, rather than let everyone just roll over you and strip your rights away. The constitution itself (which AJ routinely ignores) says very clearly that we have the RIGHT to do this when needed.

                       

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                        Anonymous Coward, Feb 7th, 2011 @ 6:10pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        After disregarding all the back and forth invective, I'd like to say--- thanks for the quotations, RD

                         

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                        Anonymous Coward, Feb 7th, 2011 @ 10:10pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        Hey, a full post with only one CAPITALIZED word. Keep taking them meds, you are almost back to being human :)

                         

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              AJ, Feb 7th, 2011 @ 9:17am

              Re: Re: Re: Re: Re:

              "See, this is the kind of abuse I receive systematically on techdirt. I have an opinion that differs from the herd, and I'm treated like shit because of it"

              LOL!!!!!!!!!!!
              Great, thanks Joe, now i've got to clean sprite off my screens... you a victim.... if I had a dollar for everytime you insulted someone....

              "You can find sympathy between shit and syphilis in the dictionary….."

               

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              vivaelamor (profile), Feb 7th, 2011 @ 9:24am

              Re: Re: Re: Re: Re:

              "You just want to hurl insults. You are not advancing the conversation. You are destroying it."

              While I won't defend a person who throws around statements such as 'fuck off and die', you're not the poster child for being nice to people. Playing the victim doesn't suit you.

               

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                average_joe (profile), Feb 7th, 2011 @ 9:40am

                Re: Re: Re: Re: Re: Re:

                Why am I being abused today? What justification is there? Why aren't you admonishing those who are adding nothing to the conversation?

                I'm trying to have a polite and frank conversation, and people are jumping on me left and right.

                Are you suggesting that since I've reacted badly to the abuse in the past, that it's game on and everyone can abuse me all they want? I hope not.

                 

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                  vivaelamor (profile), Feb 7th, 2011 @ 10:16am

                  Re: Re: Re: Re: Re: Re: Re:

                  "Why am I being abused today? What justification is there? Why aren't you admonishing those who are adding nothing to the conversation?"

                  If you're going to throw that out there, the person who told you to fuck off and die actually supplied a load of relevant information. I'm not motivated to go through the rest of the thread to find out who else you might be referring to. Plus, that person being an ass was evident from reading their post, whereas your hypocrisy wasn't.

                  Why don't you jump in to defend Mike every time someone insults him?

                  "I'm trying to have a polite and frank conversation, and people are jumping on me left and right."

                  I can't say I agree with everyone who responds to your posts, many people don't seem to say anything beyond voicing their opinion of you, but hey! I don't see you jumping in every time someone talks about freetards. If someone says something that's factually incorrect then I'll tend to post a response. I'm unsure what you're expecting, for someone to wave a magic wand and make people like you?

                  "Are you suggesting that since I've reacted badly to the abuse in the past, that it's game on and everyone can abuse me all they want? I hope not."

                  No, actually I explicitly said the opposite, in that I will not defend someone who throws around the phrase 'fuck off and die'. Your hypocrisy is a separate issue that I only felt worth mentioning because it seems to be a running theme. I don't actually expect anyone to start being nicer to you, or you to them, I just expect people to realise that you're not some poor victim of the Techdirt hordes, any more than Mike or those who tend to agree with him are victims of a horde of posters who closely resemble the classic stereotype of an internet troll.

                   

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                  The Groove Tiger (profile), Feb 7th, 2011 @ 11:35am

                  Re: Re: Re: Re: Re: Re: Re:

                  "Are you by chance wearing a tinfoil hat? Wow."
                  Abuse!

                  "Not the best legal analysis by Mike, but that's nothing new..."
                  Abuse!

                  "You've been drinking too much of Mike's Kool-Aid. That stuff will rot your brain."
                  Abuse!

                  "So says the spineless twit so insecure in his point of view that he can't even make a screen name. Another mindless Mike lover with nothing of substance to say. Congrats!"
                  Abuse! (note: this was in response to a generic "you're trolling" post. no verbal abuse there. disproportionate response anyone?)

                  "Suspect all you want. I suspect you're a moron."
                  Abuse!

                  "You strike me as one of the most vocal yet uniformed people I've ever met on the 'net. Congrats!"
                  Abuse!

                  It's also become obvious that your "I like to see both sides of the argument" gimmick was just something to pass yourself as a serious commenter, but nowadays you're just ready to jump into the "Masnick Effect" bandwagon every time one of the trolls that "don't add anything to the conversation" pop up, as long as they're on your side :D

                  Anyone watching your recent post history can see that.

                  Grow up, little child ;)

                   

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                    Anonymous Coward, Feb 7th, 2011 @ 2:09pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    All amusement aside, don't you think you would be better off addressing the points of the matter rather than trying to should AJ down? What you have just done is ignore the post, ignore the points being made, and argue about personality.

                    When you do that, you have already lost.

                     

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                    average_joe (profile), Feb 7th, 2011 @ 2:35pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    I can dish it out like the rest. I fully concede the point.

                     

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              Cowardly Anon, Feb 7th, 2011 @ 9:32am

              Re: Re: Re: Re: Re:

              No, you are a troll who systematically tries to get under the skin of the rest of the community.

              As the old meme goes: Successful troll is successful.

              Pat yourself on the back and give your self a cookie.

               

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                average_joe (profile), Feb 7th, 2011 @ 9:41am

                Re: Re: Re: Re: Re: Re:

                More abuse from someone adding nothing to the conversation. I don't get it.

                 

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                Anonymous Coward, Feb 7th, 2011 @ 2:57pm

                Re: Re: Re: Re: Re: Re:

                Only if a "troll" is someone who has a minority opinion. Some people accept that definition, but I don't think it's very useful.

                 

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              RD, Feb 7th, 2011 @ 9:33am

              Re: Re: Re: Re: Re:

              "See, this is the kind of abuse I receive systematically on techdirt. I have an opinion that differs from the herd, and I'm treated like shit because of it. I was going to respond to your points, RD, but then I got to the end of your post and realized that you don't want to have an honest, open discussion. You just want to hurl insults. You are not advancing the conversation. You are destroying it."

              Aww diddums widdle fweelings get butthurt? Sorry, but you left "honest disucssion" at the door with a) your ridiculous "govt is ALL" rhetoric, and b) your own incessant name-calling of others. Funny that it only seems to be a problem when its directed at you.

              You want to be a lawyer and you cant take the pressure of a little name-calling on an internet forum? And then throw up your hands and dont rebut when your points are called out (with citations)? Well, ok...good luck with that.

               

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                average_joe (profile), Feb 7th, 2011 @ 9:42am

                Re: Re: Re: Re: Re: Re:

                I can take the pressure, I've been taking it for months. I just don't get it. If you disagree with me, say why you disagree. No need to go all negative and call me names. That is not productive.

                 

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                  Anonymous Coward, Feb 7th, 2011 @ 10:12am

                  Re: Re: Re: Re: Re: Re: Re:

                  Actually, this isn't productive. You co-opt conversations constantly and I've called you out on it more than once.

                  When someone responds to something you said which was obviously poorly thought out you immediately move to the victim stance. If they didn't say anything mean enough for that ploy to work then you hurl back a bunch of B.S.

                  Your entire tactic is to get people frustrated with you so that you can always play from the safe, pathetic, victim position.

                   

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                  crade (profile), Feb 7th, 2011 @ 11:15am

                  Re: Re: Re: Re: Re: Re: Re:

                  Personally, I appreciate (some) of your posts, since you often actually seem to think of counterpoints rather than just throw out insults like the usual people who dissagree. However, you really have to expect to take some abuse for it. You know you are arguing a minority opinion here, you should know a great number of people don't handle discussions that question their views very well and you are certain to run into some of them. Most of us have been on the unpopular side of a discussion before and complaining that everyone is picking on you probably isn't going to help you any. You have to be prepared for some people to get nasty, stick to your defensible arguments, rethink any that are disproven and have a thick skin against irrelevent crap.

                  I don't see how you can "not get it", it's a simple matter. If you want to argue atheism in Sunday School or creation at an atheism conference, you gotta be prepared for people to get angry and insult you. Trust me.

                   

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              Anonymous Coward, Feb 7th, 2011 @ 10:27am

              Re: Re: Re: Re: Re:

              For what it is worth,
              I disagree with probably 98% of what you say BUT
              I have tremendous respect for you because you

              1: Have a name
              2: Try to refrain from the pointless name calling that you are often subjected to.
              3: Demonstrate a clear passion for your positions(ie: you are not just arguing to be a poop disturber).
              4: Acknowledge when it is shown that you were mistaken.

              I wish you well in your studies.

               

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                Atkray (profile), Feb 7th, 2011 @ 10:32am

                arrrgh

                Double whoops
                Previous post should be here

                 

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                average_joe (profile), Feb 7th, 2011 @ 11:15am

                Re: Re: Re: Re: Re: Re:

                For what it is worth,
                I disagree with probably 98% of what you say BUT
                I have tremendous respect for you because you

                1: Have a name
                2: Try to refrain from the pointless name calling that you are often subjected to.
                3: Demonstrate a clear passion for your positions(ie: you are not just arguing to be a poop disturber).
                4: Acknowledge when it is shown that you were mistaken.

                I wish you well in your studies.


                Sincere thanks. I enjoy being challenged in my beliefs. That's what I love about this place--I get challenged left and right.

                 

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              Schvenzlerman, Feb 7th, 2011 @ 4:02pm

              avg. Joe still barking out of butt

              Joe, you are entitled to your own opinion but not your own set of facts. And you were indeed lazy. It's called a browser. Open it and read the Constitution. Thanks.

               

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                average_joe (profile), Feb 7th, 2011 @ 4:24pm

                Re: avg. Joe still barking out of butt

                Joe, you are entitled to your own opinion but not your own set of facts. And you were indeed lazy. It's called a browser. Open it and read the Constitution. Thanks.

                Can you point me to the exact part you think I missed?

                 

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                  Anonymous Coward, Feb 7th, 2011 @ 4:28pm

                  Re: Re: avg. Joe still barking out of butt

                  "Joe, you are entitled to your own opinion but not your own set of facts. And you were indeed lazy. It's called a browser. Open it and read the Constitution. Thanks.

                  Can you point me to the exact part you think I missed?"

                  Well, given your lack of understanding that you have shown to date, I'd say start with, well, ALL of it.

                   

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                    average_joe (profile), Feb 7th, 2011 @ 4:34pm

                    Re: Re: Re: avg. Joe still barking out of butt

                    Which part deals with the right to jury nullification? We must have skipped that in my Con Law class... :)

                     

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                      harbingerofdoom (profile), Feb 7th, 2011 @ 7:04pm

                      Re: Re: Re: Re: avg. Joe still barking out of butt

                      im having some difficulty finding it, but look up "jury nullification: the top secret constitutional right" by James Duane.

                      a law professor that goes over that specific information.

                      i have a copy of it on my computer, but cant seem to find it online. the main idea is basically that jury nullification has its roots in the 6th amendment and the double jeopardy clause then goes about backing up the position with case law.
                      it also does cover dissenting opinions about the validity of jury nullification.

                      for anyone else that doesnt really know what jury nullification is, its a great read and explains a lot even if you may not agree with his position.

                       

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                      Anonymous Coward, Feb 8th, 2011 @ 1:55am

                      Re: Re: Re: Re: avg. Joe still barking out of butt

                      9th and 10th amendments deal with rights not specifically enumerated.

                       

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                        average_joe (profile), Feb 8th, 2011 @ 7:01am

                        Re: Re: Re: Re: Re: avg. Joe still barking out of butt

                        What about people's 6th Amendment right to a fair trial?

                         

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                          Anonymous Coward, Feb 8th, 2011 @ 4:12pm

                          Re: Re: Re: Re: Re: Re: avg. Joe still barking out of butt

                          You asked specifically what part of the Constitution deals with jury nullification. I was pointing out that the bill of rights says explicitly that there are rights not mentioned in the bill of rights.

                          To think about it differently, what is not prohibited is allowed. Where is jury nullification prohibited?

                          As for right to a fair trial, jury nullification is about finding defendants innocent even though they are technically guilty because of the belief that the law is unfair or unfairly applied. All other scenarios mentioned here about juries making up laws or finding defendants guilty unfairly are NOT jury nullification. They fall into some other category.

                          How is that unfair to the defendant?

                           

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            The Groove Tiger (profile), Feb 7th, 2011 @ 9:08am

            Re: Re: Re: Re:

            You and your "consteetushon" are no match for Average Joe: Ace Attorney!

             

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              average_joe (profile), Feb 7th, 2011 @ 9:43am

              Re: Re: Re: Re: Re:

              Do you have a point? Are you able to add anything to the debate?

               

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                The Groove Tiger (profile), Feb 7th, 2011 @ 11:04am

                Re: Re: Re: Re: Re: Re:

                Hey, you're going to ignore any arguments that call you names, even though you do the same all the time, so why not skip right to the part of my point where you decide to ignore the whole comment? ;)

                 

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            Robert P (profile), Feb 7th, 2011 @ 9:11am

            Re: Re: Re: Re:

            Well Done RD! I especially liked the James Madison quote, although he wasn't really referring to Jury nullification in that paper but about "The mutability in the public councils arising from a rapid succession of new members".

            http://www.constitution.org/fed/federa62.htm

             

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            Anonymous Coward, Feb 7th, 2011 @ 12:06pm

            Re: Re: Re: Re:

            True the 1st amendment may protect the right of expression, however this can endanger your right to a fair trial.

            As I understand it, during jury selection you are to be asked if anyone has approached you in effort to sway your vote. If there's a group of people outside the only entrance to the court handing out documentation telling you how to vote then you can only honestly answer that you have. At this point you would promptly be removed from your responsibility as a juror.

             

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              Anonymous Coward, Feb 7th, 2011 @ 12:55pm

              Re: Re: Re: Re: Re:

              Informing people of their rights as a jury is not coaching anybody about a specific case, get real.

               

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              BigKeithO (profile), Feb 7th, 2011 @ 1:04pm

              Re: Re: Re: Re: Re:

              Aren't the pamphlets informing the jurors their options in voting? I don't think they are telling them how to vote in any particular case, simply explaining their options.

              I don't see how instructing people on the proper use of their job is swaying them one way or another.

               

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              JEDIDIAH, Feb 7th, 2011 @ 1:25pm

              Vor Dire

              No.

              What endangers my right to a fail trial is the fact that both sides of the case can cherry pick jurors. This process does far more harm to fairness and justice than any pamphlet that some nutter might be passing out on the courthouse steps.

              This process ensures that no one that sits on the jury will be able to sort out whatever BS is thrown at them.

               

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                Gabriel Tane (profile), Feb 7th, 2011 @ 2:01pm

                Re: Vor Dire

                LOL... sorry, but I have to point this one out...


                "What endangers my right to a fail trial is the fact ..."


                I know what you meant and I'm not picking on you... I just had to point out the irony of that slip. hehehe... made my afternoon. :)

                 

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                Anonymous Coward, Feb 7th, 2011 @ 2:32pm

                Re: Vor Dire

                agreed, but do you have an idea on how to improve the system? Seeing as to how the previous system was much worse in that you have a nutter in the judges seat that had ultimate and incontestable say on whether you were guilty or not, even if his verdict was based entirely on the fact that you did something he didn't like (such as sleep with his daughter)

                 

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            Anonymous Coward, Feb 7th, 2011 @ 12:58pm

            Re: Re: Re: Re:

            he is the "average joe"

            i stopped taking his comments seriously when i realized he's a gimmick

             

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            Anonymous Coward, Feb 7th, 2011 @ 2:54pm

            Re: Re: Re: Re:

            Only two of your four quotes support jury nullification. I'm sure I could find many things that are not in fact legal, that were supported by at least two founding fathers.

             

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            SP, Feb 7th, 2011 @ 9:23pm

            Re: Re: Re: Re:

            Is this codified anywhere? I know you can find some "founding fathers" who believed pretty much anything, from "the US is a christian nation" to "blacks aren't really people".

             

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          AJ, Feb 7th, 2011 @ 8:59am

          Re: Re: Re:

          Looks to me like Jury Nullification is a vital part of our legal system. Our founding fathers were very aware of this fact...

          "I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution."
          -Thomas Jefferson

          "If a juror accepts as the law that which the judge states, then that juror has accepted the exercise of absolute authority of a government employee and has surrendered a power and right that once was the citizen's safeguard of liberty."
          (1788) (2 Elliots Debates, 94, Bancroft, History of the Constitution, 267)

          Sources:
          http://www.isil.org/resources/lit/history-jury-null.html
          http://en.wikipedia.org/wiki/Jury_nullification

           

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            Anonymous Coward, Feb 7th, 2011 @ 10:24am

            Re: Re: Re: Re:

            Right or wrong, that's not the way it's viewed now. I would love to see a lawyer try to submit jury instructions(or even in his final statement) try to say "don't worry about the law, vote with your conscience." Despite what a few of the framers might have thought, they just put the right to a jury trial in the Bill of Rights, but did not define the right for a jury to nullify abusive laws.

             

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              Bruce Ediger (profile), Feb 7th, 2011 @ 9:31pm

              Re: Re: Re: Re: Re:

              The single time I was called to jury duty and got selected for a jury, the District Attorney did exactly what you said you like to see. There was some puffery about laws, but the evidence wasn't there to support the charge. The DA basically asked us to vote our conscience.

              I bet it happens all the time.

               

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          Anonymous Coward, Feb 7th, 2011 @ 9:09am

          Re: Re: Re:

          "even if the Founding Fathers were for jury nullification, that does not mean someone today has a First Amendment right to stand outside the courthouse and promote it."

          You're right, but they do (or at least should) have a first amendment right to do so, but that law is separate from jury nullification.

           

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          Richard (profile), Feb 7th, 2011 @ 9:18am

          Re: Re: Re:

          Secondly, even if the Founding Fathers were for jury nullification, that does not mean someone today has a First Amendment right to stand outside the courthouse and promote it.

          You are quite correct of course.

          Although both statements are true the second is not a consequence of the first. (Since you have a first amendment right to stand outside the courthouse and say pretty much anything you like - whether the founding fathers agree or not.) However it is also a strawman - since no-one made that argument in the first place.

           

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            average_joe (profile), Feb 8th, 2011 @ 7:04am

            Re: Re: Re: Re:

            You are quite correct of course.

            Although both statements are true the second is not a consequence of the first. (Since you have a first amendment right to stand outside the courthouse and say pretty much anything you like - whether the founding fathers agree or not.) However it is also a strawman - since no-one made that argument in the first place.


            Actually, the caselaw I cited below makes it clear that you do not have a First Amendment right to stand outside the courthouse and attempt to tamper with the jury. Jury tampering is not protected speech.

             

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              btr1701 (profile), Feb 8th, 2011 @ 9:05am

              Re: Re: Re: Re: Re:

              > Actually, the caselaw I cited below makes it clear
              > that you do not have a First Amendment right to
              > stand outside the courthouse and attempt to tamper
              > with the jury.

              There must have been a recent and spectacular expansion of the definition of "jury tampering" that I wasn't aware of if it now encompasses discussion of general jury practices which are completely legal but which judges just don't care for.

               

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                average_joe (profile), Feb 8th, 2011 @ 9:23am

                Re: Re: Re: Re: Re: Re:

                There must have been a recent and spectacular expansion of the definition of "jury tampering" that I wasn't aware of if it now encompasses discussion of general jury practices which are completely legal but which judges just don't care for.

                It's nothing new. Attempting to influence people known to be prospective jurors is illegal. It's been illegal for years and years.

                 

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                  btr1701 (profile), Feb 8th, 2011 @ 10:26am

                  Re: Re: Re: Re: Re: Re: Re:

                  > Attempting to influence people known to be
                  > prospective jurors is illegal.

                  You and I both know that it takes more than just a general attempt to influence. If that were the case, then books like this could be banned outright:

                  http://tinyurl.com/49dkcjr

                  Since that's obviously not the case, a charge of "jury tampering" has to be much more specifically targeted to individual jurors in specific cases in order to be valid.

                  Even attorneys who hold pre-trial press conferences can't be charged with jury tampering. The most they could be charged with is contempt for violating a judge's order not to speak to the media about the case.

                   

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          btr1701 (profile), Feb 7th, 2011 @ 10:40am

          Re: Re: Re: Nullification

          > even if the Founding Fathers were for jury
          > nullification, that does not mean someone today
          > has a First Amendment right to stand outside the
          > courthouse and promote it.

          You're right. The fact that the Founders were in favor of nullification doesn't give rise to a right to promote it. It's the 1st Amendment that guarantees that right.

          The idea that this is such a compelling state interest that it trumps the 1st Amendment when there have been so many other *more* compelling state interests (Pentagon Papers, etc.) where actual lives and national security were in jeopardy but were nevertheless found not to trump the 1st Amendment is ridiculous.

          And given the fact that nullificiation is indeed legal in most jurisdictions, it's hard to see how talking about it could corrupt the system or how it could be constitutional to ban talking about it.

           

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            average_joe (profile), Feb 8th, 2011 @ 7:06am

            Re: Re: Re: Re: Nullification

            And given the fact that nullificiation is indeed legal in most jurisdictions, it's hard to see how talking about it could corrupt the system or how it could be constitutional to ban talking about it.

            According to the caselaw I cited below, nullification is not a right in any U.S. jurisdiction.

             

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              btr1701 (profile), Feb 8th, 2011 @ 9:02am

              Re: Re: Re: Re: Re: Nullification

              > According to the caselaw I cited below, nullification
              > is not a right in any U.S. jurisdiction.

              I never said nullification was a right. I said it was legal.

              What *is* a right is talking about nullification.

               

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                average_joe (profile), Feb 8th, 2011 @ 9:16am

                Re: Re: Re: Re: Re: Re: Nullification

                I never said nullification was a right. I said it was legal.

                How is exercising a right you don't have "legal"?

                What *is* a right is talking about nullification.

                Not when it's jury tampering.

                 

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                  btr1701 (profile), Feb 8th, 2011 @ 10:28am

                  Re: Re: Re: Re: Re: Re: Re: Nullification

                  > > I never said nullification was a right.
                  > > I said it was legal.

                  > How is exercising a right you don't have "legal"?

                  I'm not claiming it's an exercise of a right at all. It's merely a legal power of the jury.

                  > > What *is* a right is talking about nullification.

                  > Not when it's jury tampering.

                  Something for which you've provided absolutely no evidence other than your own say-so.

                   

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                    average_joe (profile), Feb 8th, 2011 @ 10:43am

                    Re: Re: Re: Re: Re: Re: Re: Re: Nullification

                    I'm not claiming it's an exercise of a right at all. It's merely a legal power of the jury.

                    And again, how is exercising a right you don't have "legal"? Since you don't have the right, that makes it illegal.

                    Something for which you've provided absolutely no evidence other than your own say-so.

                    I'm telling you now for the third time to read the Turney case I quoted below. Since you can't seem to locate it, I'll quote it again:
                    [I]t is the intent to influence the outcome that is critical. Whether such statements violate the statute turns on the intent of the utterer; a misguided or erroneous suggestion does not violate the statute absent the prohibited criminal intent. ***

                    Speech aimed at influencing the juror's conduct as a juror, i.e., the juror's execution of the responsibilities imposed by the trial court in a particular case, is not constitutionally protected. Justice Frankfurter noted that: "In securing freedom of speech, the Constitution hardly meant to create the right to influence judges or juries. That is no more freedom of speech than stuffing a ballot box is an exercise of the right to vote." Pennekamp v. Florida, 328 U.S. 331, 366, 66 S.Ct. 1029, 1047, 90 L.Ed. 1295 (1946) (Frankfurter, J., concurring).

                    Other courts that have looked at the issue have also recognized that utterances involved in the obstruction of justice are not protected by the First Amendment. In rejecting an overbreadth and vagueness habeas challenge to a witness tampering statute, the federal district court in New Hampshire held that the defendant's interest in communicating with a potential witness with the intent to tamper was “minuscule” and outside the scope of First Amendment protection. Kilgus v. Cunningham, 602 F.Supp. 735, 739-40 (D.N.H.), aff'd, 782 F.2d 1025 (1st Cir.1985). The Florida Court of Appeals similarly concluded that “[e]fforts to influence a grand jury in its deliberations respecting specific matters under investigation by it are not shielded by the constitutional guarantee of free speech.” Dawkins v. State, 208 So.2d 119, 122 (Fla.App.), cert. denied, 393 U.S. 854, 89 S.Ct. 101, 21 L.Ed.2d 123 (1968). In concluding that the presence of spectators wearing “Women Against Rape” buttons at a rape trial deprived the defendant of a fair trial, the Ninth Circuit noted that “[w]here fair trial rights are at significant risk ... the first amendment rights of trial attendees can and must be curtailed at the courthouse door.” Norris v. Risley, 918 F.2d 828, 831 (9th Cir.1990).

                    We conclude that because AS 11.56.590 is narrowly drawn and proscribes only speech intended to influence a juror in his or her capacity as a juror in a particular case, it does not reach speech protected by the First Amendment, and thus is not impermissibly overbroad.
                    Which part of "Speech aimed at influencing the juror's conduct as a juror, i.e., the juror's execution of the responsibilities imposed by the trial court in a particular case, is not constitutionally protected." is unclear to you? You do not have a right to talk about nullification if that speech is tampering a juror.

                    I can't help but feel you disagree with me just for the sake of disagreeing. It's getting really old.

                     

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                      Anonymous Coward, Feb 8th, 2011 @ 10:49pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Nullification

                      Reasons why I question the application of this reference to our discussion of jury nullification:

                      [I]t is the intent to influence the outcome that is critical.

                      I read this to mean intent to cause a juror to vote one way or another in a specific case. I suppose it could also be construed to mean giving a juror incorrect information about being a juror.

                      But that seems to be the point in question, i.e. whether judges are in fact giving jurors the complete and correct information. I hardly think a charge of jury tampering would apply if someone recommended to prospective jurors that they do just as the judge instructs them, because that information is not counter to the judges wishes. However if a judge desires the jurors to act in a particular way which is opposed to their duty as jurors, that seems more like jury tampering to me than someone giving general correct information about being a juror with no intent to influence the jurors' specific decisions.

                      Whether such statements violate the statute turns on the intent of the utterer; a misguided or erroneous suggestion does not violate the statute absent the prohibited criminal intent. ***

                      This looks like even if the information is wrong, it's not illegal, lacking that specific 'criminal' intent.

                      Speech aimed at influencing the juror's conduct as a juror, i.e., the juror's execution of the responsibilities imposed by the trial court in a particular case, is not constitutionally protected.

                      Reading between the lines here, a judge is clearly trying to influence jurors conduct in a very specific case. I'm guessing what is meant is 'influencing' either in a wrong way, i.e. to get them to vote in a particular fashion, or suggesting they perform their duties in an incorrect way. In either case, handing out factual pamphlets does not target jurors in a specific trial nor suggest either a guilty or innocent vote. And if the information is correct, then I see no more harm than suggesting that one should serve jury duty rather than trying to get excused.

                      Justice Frankfurter noted that: "In securing freedom of speech, the Constitution hardly meant to create the right to influence judges or juries. That is no more freedom of speech than stuffing a ballot box is an exercise of the right to vote." Pennekamp v. Florida, 328 U.S. 331, 366, 66 S.Ct. 1029, 1047, 90 L.Ed. 1295 (1946) (Frankfurter, J., concurring).

                      Sort of boilerplate here. The judge may as well be saying that having a standing army isn't intended to promote murder, or the right to keep and bear arms doesn't mean we can all have battleships. Clearly there are myriad things existing rights don't mean.

                      But again, I think he is using 'influence' in a very limited way. Everything from how a jurors spouse treated them that morning to experiences in second grade to minor aches and pains to whether the nice police person at the metal detector smiled at them will influence the jurors to some extent. But none of that was done with 'intent to influence' in what would be considered a 'wrong' way.

                      This all turns on whether the information is correct or not. Since there is no trial specific information being distributed and there is no suggestion to vote guilty or innocent, the whole 'influence' claim is conditioned on the information being wrong. That brings us to a question of whether what the judge is saying about juries' rights and duties is correct or not, which is our point in question.

                      It seems somewhat circular to use a judge's statement to support a judge's statement here. I know that legally that's kind of how it works. But we are discussing specifically whether a belief commonly held by judges is, in fact, incorrect; specifically, that juries have a duty to evaluate the law. I, for one, am willing to stipulate that many judges disagree with this concept. I am not, however, willing to stipulate that this invalidates the concept in any way.

                      Has a juror ever been sanctioned for casting a vote which was influenced by jury nullification ideas?

                      Is anyone arguing that it is right and proper for someone to be convicted of breaking an unjust law?

                      Other courts that have looked at the issue have also recognized that utterances involved in the obstruction of justice are not protected by the First Amendment.

                      Sure, obstruction of justice is a bad thing, but is justice obstructed by giving jurors complete and accurate information about their duties?

                      In rejecting an overbreadth and vagueness habeas challenge to a witness tampering statute, the federal district court in New Hampshire held that the defendant's interest in communicating with a potential witness with the intent to tamper was “minuscule” and outside the scope of First Amendment protection. Kilgus v. Cunningham, 602 F.Supp. 735, 739-40 (D.N.H.), aff'd, 782 F.2d 1025 (1st Cir.1985).

                      Doesn't really seem to apply to this discussion, as we aren't talking about coaxing witnesses here.

                      The Florida Court of Appeals similarly concluded that “[e]fforts to influence a grand jury in its deliberations respecting specific matters under investigation by it are not shielded by the constitutional guarantee of free speech.” Dawkins v. State, 208 So.2d 119, 122 (Fla.App.), cert. denied, 393 U.S. 854, 89 S.Ct. 101, 21 L.Ed.2d 123 (1968).

                      As no intent to 'influence' (as previously discussed) a jury, grand or otherwise, in deliberations respecting specific matters under investigation by it then this portion does not seem to apply.

                      In concluding that the presence of spectators wearing “Women Against Rape” buttons at a rape trial deprived the defendant of a fair trial, the Ninth Circuit noted that “[w]here fair trial rights are at significant risk ... the first amendment rights of trial attendees can and must be curtailed at the courthouse door.” Norris v. Risley, 918 F.2d 828, 831 (9th Cir.1990).

                      Fair trials are a good thing. But here, clearly, there was something of a suggestion that the jury find the defendant guilty, which suggestion is not present in the concept of jury nullification.

                      In fact, the whole point of jury nullification is to find a defendant innocent, if and only if certain conditions apply, i.e. the defendant is guilty of the charge in question, AND the law is unjust or unjustly applied to this defendant. (As an aside, if the defendant is innocent, jury nullification does not apply because it's not about finding innocent people guilty. That is something else which is not under discussion here.)

                      We conclude that because AS 11.56.590 is narrowly drawn and proscribes only speech intended to influence a juror in his or her capacity as a juror in a particular case, it does not reach speech protected by the First Amendment, and thus is not impermissibly overbroad.

                      And there it is in a nutshell. "Proscribes only speech intended to influence a juror in his or her capacity in a particular case..." My understanding of the whole pamphlet thing is that, while it does appear to target people called for jury duty, it does not seem to target any SPECIFIC case.

                      I've been to jury duty half a dozen times or more, and I never had any information regarding any case I was called for. Where I live, if there are less than 3 or 4 possible cases on a given day, that's unusual and most are of so little note that the average person never hears about them. I actually sat in jury selection for two different cases on the same day once. (And was not selected for either.) It would be sheerest speculation that a person handing out pamphlets on a given day were targeting a specific case. Add to that the generic nature of the literature and I don't see how jury tampering could conceivably be applied. Yet I know that it has been.

                      I would point out that different judges sometimes have opposing ideas on points of law, which is one reason we have of courts of appeal. (The other obvious example being mistakes made by judges on points of law, which I suppose is also valid to mention here.) Further, I believe even the supreme court has on occasion (not often, I expect) reversed itself. With that in mind. I am certainly not prepared to accept a lower court ruling on this topic, inasmuch as I believe judges have a vested interest in the issue. If the supreme court issues an opinion on this I would be interested to read it. And, just to be difficult, I do not consider the supreme court's silence on an issue to be definitive.

                       

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          Chris Rhodes (profile), Feb 7th, 2011 @ 11:03am

          Re: Re: Re:

          that does not mean someone today has a First Amendment right to stand outside the courthouse and promote it.

          Yes, I can't imagine how the right to free speech would cover something as out there as discussing important legal issues with other private citizens on public land in situations that cause neither hazard nor inconvenience nor cost to others. Surely, the first amendment was crafted to only allow people to discuss non-controversial issues, with themselves, and only in their own basements (but only if a judge approves of the content).

          Way to set 'em straight, AJ.

           

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            Bruce Ediger (profile), Feb 7th, 2011 @ 9:33pm

            Re: Re: Re: Re:

            No, not a judge. The Trolls don't want you to have a trial, they want you to consult an attorney to decide if something is legal or illegal. Especially on copyright issue. Ask an attorney.

             

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            average_joe (profile), Feb 8th, 2011 @ 7:08am

            Re: Re: Re: Re:

            Yes, I can't imagine how the right to free speech would cover something as out there as discussing important legal issues with other private citizens on public land in situations that cause neither hazard nor inconvenience nor cost to others. Surely, the first amendment was crafted to only allow people to discuss non-controversial issues, with themselves, and only in their own basements (but only if a judge approves of the content).

            Way to set 'em straight, AJ.


            The caselaw I cited that addressed these issues found that such speech directed at prospective jurors is jury tampering, and as such, it's not protected speech. Thank you, though, I am trying to "set 'em straight."

             

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              Chris Rhodes (profile), Feb 8th, 2011 @ 11:23am

              Re: Re: Re: Re: Re:

              prospective jurors

              Shit, I might be a juror someday. I'd better stop using the internet or someone might try to influence me too!

               

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                average_joe (profile), Feb 8th, 2011 @ 11:52am

                Re: Re: Re: Re: Re: Re:

                Shit, I might be a juror someday. I'd better stop using the internet or someone might try to influence me too!

                LOL! Prospective in that they had received a jury summons and were showing up at the courthouse for jury selection. That's when the bad man from FIJA tried to influence them. :)

                 

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                  Chris Rhodes (profile), Feb 8th, 2011 @ 2:57pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Because being given a pamphlet a minute before the summons or a minute after makes all the difference in the world, right?

                   

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                    average_joe (profile), Feb 8th, 2011 @ 3:13pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    In the Turney case I quoted below, three jurors were influenced by the courthouse FIJA pamphleteer into changing their vote.

                     

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                      Chris Rhodes (profile), Feb 8th, 2011 @ 3:18pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      And if they had read the pamphlet just before being summoned and it had influenced them? Would the judge be within his rights to ban the subject matter entirely?

                       

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                        average_joe (profile), Feb 9th, 2011 @ 10:01am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        And if they had read the pamphlet just before being summoned and it had influenced them? Would the judge be within his rights to ban the subject matter entirely?

                        I think contacting potential jurors, i.e., the general public, is just fine. It's when you target jurors on their way into the courthouse to report for jury duty where it's different.

                        Another thing to keep in mind is that this is the chief judge issuing an order as it pertains to the courthouse property under the judge's contempt power. This isn't an injunction being issued as part of a lawsuit. As far as I know, the judge only has this jurisdiction over the court's property.

                        The FIJA guy can stand on the other side of the street and hand out pamphlets all day long, and the judge couldn't stop him like this. Once the FIJA guy steps onto the court's property, it's a different matter altogether and you are playing by the judge's rules.

                         

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          Anonymous Coward, Feb 7th, 2011 @ 12:36pm

          Re: Re: Re:

          No you didn't!

           

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          Mike Masnick (profile), Feb 7th, 2011 @ 5:30pm

          Re: Re: Re:

          even if the Founding Fathers were for jury nullification, that does not mean someone today has a First Amendment right to stand outside the courthouse and promote it.

          Actually, doesn't that seem like the very core of the first amendment?

           

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            average_joe (profile), Feb 7th, 2011 @ 7:35pm

            Re: Re: Re: Re:

            Actually, doesn't that seem like the very core of the first amendment?

            Not if there's a compelling state interest to prevent it.

             

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              Anonymous Coward, Feb 7th, 2011 @ 7:54pm

              Re: Re: Re: Re: Re:

              [citation needed]

               

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                Anonymous Coward, Feb 7th, 2011 @ 10:19pm

                Re: Re: Re: Re: Re: Re:

                Funny, did you request a citation when Mike said *the exact same thing* in the original article? Or just when someone you disagree with says it?

                 

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              Anonymous Coward, Feb 7th, 2011 @ 8:28pm

              Re: Re: Re: Re: Re:

              Actually, doesn't that seem like the very core of the first amendment?

              Not if there's a compelling state interest to prevent it.


              Heh. If the state weren't interested in suppressing speech there wouldn't be a need for the First Amendment, would there?

               

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            Anonymous Coward, Feb 7th, 2011 @ 10:16pm

            Re: Re: Re: Re:

            Actually, jury nullification is the minority telling the majority what to do, which is what this group appears to be trying to do. What they are looking for is people who are sensitive to issues such as abortion, gun control, immigration, and other related subjects, and are trying to push them to be activists in the jury room, rather than really considering the merits of the case.

            It is an incredibly dangerous situation, because it allows a small number of people (really you only need 1 in 12 in the room) to dictate the outcome of the case.

            Since I haven't see the full text of their pamphlets, I cannot say for certain, but I suspect that they are trying to push nullification as the "first" option in the jury room, not the last. That is incredibly disruptive to the judicial process, and puts in doubt laws legally passed and enforced by the majority.

            It would appear on the surface to be the legal equivalent of yelling "fire" in the theater. It is incredibly dangerous speech that can cause great harm.

             

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              btr1701 (profile), Feb 8th, 2011 @ 9:09am

              Re: Re: Re: Re: Re:

              > It would appear on the surface to be the legal
              > equivalent of yelling "fire" in the theater.

              Actually it's not. The example you cite is the layman's reference to the Court's "clear and present danger" test.

              In order for the restriction on speech to be valid, there must be a clear and present danger of imminent death or serious bodily injury as a direct result of the speech in question.

              Since no one is in any physical danger whatsoever by being handed a pamphlet on jury nullification, the "fire in a crowded theater" paradigm doesn't apply.

               

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                average_joe (profile), Feb 8th, 2011 @ 9:27am

                Re: Re: Re: Re: Re: Re:

                Since no one is in any physical danger whatsoever by being handed a pamphlet on jury nullification, the "fire in a crowded theater" paradigm doesn't apply.

                And yet the Supreme Court used that very analogy when declaring a statute that disallowed picketing near the courthouse to be constitutional. I quoted it below, but I'll quote the relevant part here:
                Nor does such a statute infringe upon the constitutionally protected rights of free speech and free assembly. The conduct which is the subject of this statute-picketing and parading-is subject to regulation even though intertwined with expression and association. The examples are many of the application by this Court of the principle that certain forms of conduct mixed with speech may be regulated or prohibited. The most classic of these was pointed out long ago by Mr. Justice Holmes: ‘The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.’ Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470.

                 

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                  Anonymous Coward, Feb 8th, 2011 @ 11:23pm

                  Re: Re: Re: Re: Re: Re: Re:

                  I would point out that this citation only draws a parallel to the example. It does NOT say they are the same. It is a reference merely to show that there are circumstances where it is appropriate to limit free speech. The question remains whether this is one of those cases.

                  I also question whether this is even a free speech issue. Free speech involves matters of opinion. If the jury in fact has a right and duty, as some claim, to evaluate the law, then it would not be a matter of opinion and no free speech issues ensue. Matters of fact are not subject to free speech limitations. To use the old example, it is perfectly reasonable, in fact it is a duty, to yell "Fire" if there is in fact a fire. (Subject to all sorts of stipulations about the relative danger to involved people by said fire, of course. 'Reasonable man' and so forth.)

                  However, there may be other compelling reasons for the state to limit circulation of facts.

                   

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                    average_joe (profile), Feb 9th, 2011 @ 6:12am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    I also question whether this is even a free speech issue. Free speech involves matters of opinion. If the jury in fact has a right and duty, as some claim, to evaluate the law, then it would not be a matter of opinion and no free speech issues ensue. Matters of fact are not subject to free speech limitations. To use the old example, it is perfectly reasonable, in fact it is a duty, to yell "Fire" if there is in fact a fire. (Subject to all sorts of stipulations about the relative danger to involved people by said fire, of course. 'Reasonable man' and so forth.)

                    I'm not First Amendment expert, but I don't think there's a fact/fiction split like that. This is a free speech issue if there ever was one.

                    As far as a duty to yell "Fire!" if there is one, I don't agree. My recollection from Torts is that if you're just a movie-goer enjoying the film, and you didn't set the fire yourself, you have no duty to warn.

                     

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                      ltlw0lf (profile), Feb 9th, 2011 @ 7:09am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      My recollection from Torts is that if you're just a movie-goer enjoying the film, and you didn't set the fire yourself, you have no duty to warn.

                      And this, my friends, is exactly why I hate lawyers (not singling out AJ, just lawyers in general.) They aren't human. From birth, we all have an innate sense of duty to protect those around us...it is called the "Herd Mentality" which comes from when we were all standing around a field and a lion or some other baddie showed up for lunch. Humans, by their very nature, will warn others when they see danger, and will act accordingly. Lawyers only think of themselves, and screw everyone else, which makes them good lawyers, but bad humans. Sure, the law says you don't have a duty to warn others, but we're all trapped together on the same rock and in some cases the right thing to do is not the legal thing to do.

                      I had this same argument with a lawyer friend of mine, and it was at that point that I realized lawyers are from another planet. The question was asked what would I do if I saw someone's kid fall off of a boat into the water. My first reaction would be to dive in and render assistance (yes, a blue canary response.) His reaction was that he'd wave goodbye to the kid as he drowned. Heartless bastard. Of course, in reality, me jumping in probably wouldn't be the best response either (rescuers drown too.)

                       

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                        average_joe (profile), Feb 9th, 2011 @ 7:40am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        That doesn't mean people shouldn't warn others, it simply means they don't have that duty. Let's say there was that duty, then everyone who got hurt in the fire could sue every other theater patron who failed to warn him about the fire. That's just ridiculous, IMO. Believe it or not, but most things in law actually make sense.

                         

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                          Anonymous Coward, Feb 10th, 2011 @ 10:12am

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          You may be right about this being a free speech issue. Perhaps I'm confusing libel/slander principles. However, just to be nitpicky, equating 'opinion' with 'fiction' seems a bit off the mark.

                          As for duty, you are wrong about my statement regarding duty. To be perfectly clear, what I consider to be my duty has no roots in what is legally required. When I speak of duty, I am referring to a personal moral sense of duty. You seem to be speaking of duty from a legal standpoint, and your statement may be correct from that standpoint. But I find the assertion that one has no duty to warn others of such an imminent danger reprehensible, even if technically correct.

                          And to be clear about definitions here, in an attempt to be more clear than I was in my previous post, by 'correct' or 'incorrect' I mean factually within the context of the statement, and by 'right' and 'wrong' I mean as a moral value judgment, which is to say that 'right' and 'correct' are not the same thing.

                           

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              vivaelamor (profile), Feb 8th, 2011 @ 9:15am

              Re: Re: Re: Re: Re:

              "It would appear on the surface to be the legal equivalent of yelling "fire" in the theater. It is incredibly dangerous speech that can cause great harm."

              More harm than promoting ignorance from the fact that jurors have such power? I already know about the concept and I've never set foot in the United States, why should I be more informed about the system than those who partake in it? If all 'good citizens' remain ignorant of the issue then that would seem to inevitably leave it even more open for abuse by the 'bad citizens'.

               

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      Gwiz (profile), Feb 7th, 2011 @ 8:50am

      Re:

      Jurors are not supposed to "vote with their conscience," and it is incorrect to state that that is their right.

      Really? You can state it is not within my right all you want, but when I enter that deliberation room my vote will always be with my conscience.

      They are supposed to vote based on the facts in evidence and the law.

      True. And lawyers are ethically bound not to lie, BUT, in my mind, omission of truth (SOP for lawyers) is also lying, so I guess the lawyers aren't living up to expectations either.

       

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        Christopher (profile), Feb 8th, 2011 @ 6:00am

        Re: Re:

        Actually, he is wrong with the "They are supposed to vote based on the facts in evidence and the law!" Part of what makes a jury system good is that you get some people on the jury who have experience in the section in question (such as a pathologist on the jury for blood evidence) so that the more learned people can point out to the jury "Hey, this is not true!" or "Hey, this is true!"

         

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          average_joe (profile), Feb 8th, 2011 @ 7:10am

          Re: Re: Re:

          That sounds bad to me, and exactly the kind of thing that's not supposed to happen in a jury deliberation. I suspect the pathologist would have been dismissed for cause in voir dire if the case involved blood evidence for that exact reason.

           

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            btr1701 (profile), Feb 8th, 2011 @ 9:11am

            Re: Re: Re: Re:

            > I suspect the pathologist would have been dismissed
            > for cause in voir dire if the case involved blood
            > evidence

            But what if he wasn't for some reason? Is he supposed to somehow completely ignore what he knows to be true and false?

             

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              average_joe (profile), Feb 8th, 2011 @ 9:28am

              Re: Re: Re: Re: Re:

              But what if he wasn't for some reason? Is he supposed to somehow completely ignore what he knows to be true and false?

              No, you're supposed to use what you know.

               

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              Anonymous Coward, Feb 8th, 2011 @ 11:31pm

              Re: Re: Re: Re: Re:

              Once during jury selection I saw a doctor dismissed for exactly that reason. He was asked if he could accept the testimony of another doctor as true even if he knew (believed) it to be untrue based on his own experience. Seemed like tampering to me at the time, and still does. But apparently that sort of tampering is OK.

               

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      Michael, Feb 7th, 2011 @ 9:03am

      Re:

      The jury is supposed to weigh the evidence and decide if the defendant is guilty beyond a reasonable doubt (or a preponderance of the evidence in a civil matter).

      However, they CAN go beyond that scope and ignore the law in a case in which they find the law unjust. This is the heart of jury nullification. It is a check against corruption in the system that allows for juries to create precedent that effectively reverses a law that is overwhelmingly felt to be unjust. Our system of government can create laws that contradict popular belief, and then a series of jury nullifications can fix that mistake.

      I have been a juror several times (for some reason, I appear impartial and intelligent?) and that second part has never been explained to me by the courts. The only reason I know that is an option is a couple of lower-level law classes I took in school years ago.

       

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      Almost Anonymous (profile), Feb 7th, 2011 @ 10:07am

      Re:

      Yeah, I'm just going to jump on the bandwagon, since I see that it has already been addressed above:

      Jury nullification... nullifyin' bad laws for 200+ years and counting.

      And judges HATE when anyone knows about it or tells other people about it. You want to get out of jury duty? Just utter those two words and I'll be shocked if you're not on your way home in a New York second.

       

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        Billy Wenge-Murphy, Feb 10th, 2011 @ 12:14am

        Re: Re:

        That's what I've heard. As I posted below, I genuinely believe it's a legitimate part of protection of our liberties. I will ABSOLUTELY nullify bad laws, so if my unique name is Googled in the future prior to or during a trial and this post is found, disqualify me now, because I will protect my fellow man from abuse of their liberties by use of the jury nullification process. The right to trial is not here to favor the government, it's here for the people.

         

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      ChimpBush McHitlerBurton, Feb 7th, 2011 @ 10:43am

      Re:

      "Jurors are not supposed to "vote with their conscience," and it is incorrect to state that that is their right. They are supposed to vote based on the facts in evidence and the law. To promote otherwise would certainly "harm the integrity of the jury system."

      Snore. Irrelevant. There's a reason you need a license to practice law.

      So you're crazy and stupid. Got it.

      CBMHB

       

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      Anonymous Coward, Feb 7th, 2011 @ 11:59am

      Re:

      unfortunately while I usually disagree with Average_Joe, this time I have to agree. The jury's responsibility is to ignore personal bias and to vote based on the validity and facts of the case. Their own personal views and conscience should never come into play.

      On another note, allowing hand-outs to a juror prior to a trial allows for discreet communication between the one handing out the documents and the juror. While in this case, it may have been benign, however there are many cases that this could be used to sway or threaten the jury.

       

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        Anonymous Coward, Feb 7th, 2011 @ 1:03pm

        Re: Re:

        The function of a jury is not to uphold the standards of a court, it to show agreement with how the system is being conducted, it is not about the law is about how the law works, it is about trust, no matter what you want others to believe it is not a about an old judge or agents of the law is about how outside people see things and have the tools to stop abuse if they find them and this is why jury nullification is a good thing, the law agents need to work harder to convince others they are useful and productive and deserve the power invested in them by the people.

         

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          Anonymous Coward, Feb 7th, 2011 @ 2:26pm

          Re: Re: Re:

          While the concept of jury nullification is new to me, I believe it should be the responsibility of the court system to inform the jury of their responsibility and of the tools available to accomplish that responsibility. That being said, I have to include that I have yet to sit on a jury and do not know if this information is provided. However knowing our legal system and government, along with testament from the choir here on Techdirt, I'm pretty sure this information is not provided.

          However while the government may not offer up this information willingly, I still believe outside a court house is a bad idea as a distribution location for this information from an outside entity for the reasons I listed previously. A better location may be in the high schools or similar localities that are supposed to inform the public of the material on the topic.

           

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            Anonymous Coward, Feb 7th, 2011 @ 7:56pm

            Re: Re: Re: Re:

            Some location is better than no location at all. Outside a court house is some location which is better than what we otherwise have.

             

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      Anonymous Coward, Feb 7th, 2011 @ 12:32pm

      Re:

      They also are not supposed to fallow a judge's orders, or believe blindly in the prosecution or defense either, they can and should exercise their own judgment and if they don't feel like who are you to decide otherwise for them?

       

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      Schvenzlerman, Feb 7th, 2011 @ 3:56pm

      avg. Joe barks out of butt

      Pray tell where is law that requires jurors to vote only on the facts in evidence and the law? Hint: It does not exist.

       

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      Billy Wenge-Murphy, Feb 10th, 2011 @ 12:11am

      Re:

      This government is by the people. The right to trial by jury is a protection FROM the government - it was granted after we violently overthrew tyranny. Voting your conscience in defiance of the law is called "jury nullification" and is essential to promoting a good government, a fair and just one. Defying bad laws is, in fact, showing high respect for the system. If you wouldn't have defied a Jim Crow law or something, you're a detriment to our liberty, and you're actually harming the system.

       

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    Rich, Feb 7th, 2011 @ 8:30am

    Serving on a jury was one of the most disheartening experiences of my life. We were not allowed to take notes. We were not allowed to have a copy of the actual law in the jury room that the defendant was accused of break. The worst part was most of the other jurors just wanted to quickly reach an agreement (it didn't matter whether it was guilty or not) because NASCAR was on.

     

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      Jay (profile), Feb 7th, 2011 @ 8:50am

      Re:

      ... I felt my spirit die slowly from just reading this...

       

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        Rich, Feb 7th, 2011 @ 8:55am

        Re: Re:

        It was all true, too. That was my second time serving on a jury. The first time, I was met with derision as I approach the court house by other jurors. They thought I was the defendant. The trial hadn't even started yet.

         

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      Hugh Mann (profile), Feb 7th, 2011 @ 9:19am

      Re:

      I actually found my one time on a jury to be fairly rewarding. While certainly nobody WANTED to be there, it appeared to me that - even though everyone came to that deliberation room with their own varied life experiences that influenced how they looked at the evidence - my fellow jurors were all trying to be fair and to do a good job. I felt that the disagreements we had during deliberations were based on opinions each juror came by honestly, and that when we did reach a verdict, everyone was satisfied that we had done the right thing.

      HM

       

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    Ima Fish (profile), Feb 7th, 2011 @ 8:35am

    My guess is that this is about jury nullification. The idea that a jury can ignore the law and acquit a person charged with a crime.

    While courts recognize that jury nullification exists, they don't like juries to actually know about it. They're afraid of the chaos it'd create if juries knew they could ignore the law.

    Here's a good summary:
    No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable. Toleration of such conduct would not be democratic, as [the proponents of jury nullification] claim, but inevitably anarchic. That is precisely why trial courts do not inform jurors of their power of jury nullification.

    People v. Morgan, 101 Cal.Rptr.2d 314 (2000)

     

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      Richard (profile), Feb 7th, 2011 @ 9:24am

      Re:

      Why do you think that juries need to be told they can nullify? It is pretty much obvious that the possibility of jury nullification is precisely the reason why we have juries in the Anyone who needs to be told that really shouldn't be on a jury - but then juries are mostly made up of people who have nothing better to do so maybe....

       

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        ChimpBush McHitlerBurton, Feb 7th, 2011 @ 10:12am

        Re: Re:

        "Why do you think that juries need to be told they can nullify? It is pretty much obvious that the possibility of jury nullification is precisely the reason why we have juries in the (first place)."

        The reason I suspect Richard, is that Judges and Courts routinely instruct the jury that it is their duty to "determine whether or not the law was broken only". They do this specifically to mislead the jury into thinking that they have no moral justification to offer.

        Basically, courts want to convict, and they don't want juries judging the law before they judge the defendant. This goes against our whole system of a trial by your peers, but the courts don't much care.

        The folks who hand out these pamphlets outside the court do so because the court has made it clear to lawyers that if they even mention jury nullification, they will be disbarred.

        Shameful.

        CBMHB

         

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        Rhiadon (profile), Feb 7th, 2011 @ 10:54am

        Re: Re:

        In the following sentences I will be making sweeping generalities to illustrate a point.

        This seems to be exactly why FIJA hands out these pamphlets. People tend to be programmed to follow authority and instructions, regardless of how egregious those instructions may be (see the wiki on the Milgram Experiment). If the jurors are told by the authority in the room (The guy wearing the costume behind the big desk) that they have to decide based on the law, then they will do that.

        Jury Nullification isn't explicitly stated as a right anywhere that I'm aware of but neither is is prohibited. This seems apparent from the citation provided by an earlier poster. Do you have the right to breathe? (I know it's a straw man, but it seems illustrative)

         

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    Jesse, Feb 7th, 2011 @ 8:38am

    Jurors aren't necessarily supposed to be well informed. For example, if a damning piece of evidence is presented but ruled inadmissible, it's going to be pretty hard to ignore that when deciding.

    If a defendant is generally considered a jerk by the public but the evidence points towards innocence, it's going to be harder for the jury.

     

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      Hugh Mann (profile), Feb 7th, 2011 @ 12:26pm

      Re:

      This is a good point. The jurors don't know what else is going on. Setencing, for instance. The judge takes care of sentencing, and will take into account the mitigating factors that may cause a juror to want to vote "not guilty".

      My own prefernce is to generally (not in every case) see these things handled in sentencing. If you steal a loaf of bread to feed your kids, I still think it's appropriate to convict you of the crime of theft, but the sentence can take into account the fact that you had exigent circumstances and let you off easy.

      HM

       

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        Eldakka (profile), Feb 7th, 2011 @ 5:09pm

        Re: Re:

        But you also have the opposite effect, of other circumstances leading to an unreasonable sentence.

        If in a sate with a 3 strikes law, and convicting someone who was starving of stealing a loaf of bread would result in them being having a mandatory 15 year sentence because of 2 previous offenses, I would like to know this. This is a case where I'd support jury nullification.

         

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    Anonymous Coward, Feb 7th, 2011 @ 8:41am

    Actually average_joe, its not the jurors duty to interpret laws. They are there to be the check on legislation that goes against public interest.
    Take prohibition for example. It was not repealed because all the nice citizens wrote to their legislators and complained as your grade school teachers undoubtedly told you. It was repealed because bootleggers were brought to court and the jury would vote not guilty every time, even though it they were blatantly guilty according to the constitution.

    This is a very seldom spoken fact about jurors because of the obvious legal ramifications it would cause when jurors start thinking in terms of their own conscience instead of some politicians 'law'

     

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      average_joe (profile), Feb 7th, 2011 @ 9:05am

      Re:

      I didn't say jurors are supposed to interpret the law, so I don't understand why you think I did. I don't agree that the jurors role is "to be a check on legislation that goes against public interest." I've never seen that in the few jury instructions I've read.

       

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        Gwiz (profile), Feb 7th, 2011 @ 9:15am

        Re: Re:

        I've never seen that in the few jury instructions I've read.

        Of course not. That's kind of the point of this post. That jurors actually have the power of nullification, but the court system really doesn't want us to know that. Hence the order banning the handing out of the pamphlets.

         

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          average_joe (profile), Feb 7th, 2011 @ 9:22am

          Re: Re: Re:

          Of course not. That's kind of the point of this post. That jurors actually have the power of nullification, but the court system really doesn't want us to know that. Hence the order banning the handing out of the pamphlets.

          They have the power, sure, but not the right. That's my understanding anyway.

           

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            Richard (profile), Feb 7th, 2011 @ 9:26am

            Re: Re: Re: Re:

            They have the power, sure, but not the right.
            and what exactly is the difference?

             

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            Gwiz (profile), Feb 7th, 2011 @ 9:35am

            Re: Re: Re: Re:

            They have the power, sure, but not the right. That's my understanding anyway.

            Huh? How does that work? I have the power to do something, but no right to do it? One would think that when I was bestowed the "power" to do something legally, then my legal "rights" to do it were also bestowed with it. Or am I missing something here?

             

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              average_joe (profile), Feb 7th, 2011 @ 9:48am

              Re: Re: Re: Re: Re:

              Here's an example: you have the power to drive 100 MPH down the highway, but not the right.

               

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                Gwiz (profile), Feb 7th, 2011 @ 10:13am

                Re: Re: Re: Re: Re: Re:

                Here's an example: you have the power to drive 100 MPH down the highway, but not the right.

                OK. I get that. I have the power to shoot someone, but not the right.

                But, in the case of jury nullification, I was discussing a "legal power" which implies that the "legal right" is included does it not? As in, "I have the power to sue someone for trespassing on my property" which certainly implies I have a right to sue that someone.

                So I am still unclear how you feel jurors have the power of nullification, but not the right.

                 

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                Richard (profile), Feb 7th, 2011 @ 10:14am

                Re: Re: Re: Re: Re: Re:

                you have the power to drive 100 MPH down the highway, but not the right.
                and if I do so then I run the risk of being prosecuted and the main reason for me not being prosecuted would be lack of detection by the authorities. However, in the current context, the authorities have all the information and therefore I contend that if juries had the power but not the right to nullify then the authorities would prosecute them. To my knowledge no juror has been prosecuted for nullification (although I understand that in the US the judge can overturn the jury's verdict) since the 17th century Haymarket case.

                From Wikipedia
                "In the 1670 "Hay-market case", William Penn was accused of the crime of 'preaching Quakerism to an unlawful assembly' and while he freely admitted his guilt, he challenged the righteousness of such a law. The jury, recognizing that William Penn clearly had been preaching in public, but refusing to find him guilty of speaking to an unlawful assembly, attempted to find Penn guilty of "speaking in Gracechurch-street". The judge, unsatisfied with this decision, withheld food, water, and toilet facilities from the jurors for three days. The jurors finally decided to return a not guilty verdict overall, and while the decision was accepted, the jurors were fined. One of the jurors appealed this fine, and Chief Justice Sir John Vaughn issued an historically important ruling: that jurors could not be punished for their verdicts. This case is considered a significant milestone in the history of jury nullification.[21]"

                So I would contend that in the case of juries the power and the right amount in practice to the same thing.

                 

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                Anonymous Coward, Feb 7th, 2011 @ 10:17am

                Re: Re: Re: Re: Re: Re:

                Except that jury nullification isn't illegal and driving 100 MPH down the highway is.

                Why don't you just own up? You said something incorrect and a little foolish, just admit it. You constantly talk about how much you like for people to point out when you're wrong, we'll here you go: you are wrong.

                 

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                  average_joe (profile), Feb 7th, 2011 @ 11:09am

                  Re: Re: Re: Re: Re: Re: Re:

                  I'll gladly own up if I'm wrong. Exactly what was my error?

                   

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                    freak (profile), Feb 7th, 2011 @ 12:49pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    "They have the power, sure, but not the right"

                     

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                      average_joe (profile), Feb 8th, 2011 @ 7:14am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      "They have the power, sure, but not the right"

                      And as the caselaw that I quoted demonstrates, my statement was 100% correct. Why doesn't the AC "own up" and admit that he was 100% wrong?

                       

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                        Anonymous Coward, Feb 8th, 2011 @ 9:04am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        I'm not "admitting that I'm 100% wrong" because the case law you cited specifically says that jurors have a right to jury nullification. See, when someone has "de facto power" to do something that is a fancy lawyer way of saying that they have a natural right. I never argued that it was specifically spelled out in the law, only that you made a rather foolish statement and then tried very hard to back it up after the fact.

                        Natural rights supersede legal rights, and while no one (including me) is interested in a legal system where juries are regularly ignoring the law. The right to nullify is a natural right which occurs under our system of law and the Supreme Court decided not to invalidate that right by removing it through legal means.

                         

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                          average_joe (profile), Feb 8th, 2011 @ 9:21am

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          I'm not "admitting that I'm 100% wrong" because the case law you cited specifically says that jurors have a right to jury nullification.

                          No it doesn't. It specifically says the opposite. Shall I quote it for you again?

                          See, when someone has "de facto power" to do something that is a fancy lawyer way of saying that they have a natural right.

                          Absolutely wrong. I have the de facto power to murder someone. Does that mean I have the right?

                          I never argued that it was specifically spelled out in the law, only that you made a rather foolish statement and then tried very hard to back it up after the fact.

                          What was "foolish" about my statement? My statement was 100% accurate.

                          Natural rights supersede legal rights, and while no one (including me) is interested in a legal system where juries are regularly ignoring the law. The right to nullify is a natural right which occurs under our system of law and the Supreme Court decided not to invalidate that right by removing it through legal means.

                          A juror who announces that he will exercise his power to nullify is removed from the jury for cause. If it was a right of any kind, then that juror would have the right to do it--but they don't. The whole "natural right" argument makes no sense to me. It's no more a "right" than my "right" to murder the judge.

                           

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                            Anonymous Coward, Feb 8th, 2011 @ 11:49pm

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                            Seems weak to me. You're equating a 'right' to do something illegal with a 'right' to do something not illegal, so far as I know. Of course that makes it sound silly.

                            And jurors are removed 'for cause' for all sorts of reasons that would not seem fair to many people. But the only ones this process is intended to be fair to are the defendant and the state. Doesn't have to make sense to you and me.

                            While we're at it, I've read a big part of this thread and haven't seen 'right' defined. But I'm pretty sure we're not on the same page about that.

                             

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                AR (profile), Feb 7th, 2011 @ 10:33am

                Re: Re: Re: Re: Re: Re:

                I think this is where you may be getting a little confused. You have the power to go 100 mph, but not the right when its illegal to go that fast. If the speed limit IS 100 mph then you have both the power and the right. With jury nullification its the same way. Nullification is not illegal and is actually part of the system. Its just that judges dont want the jurists to know that because they feel it takes power away from them and gives it to the people. So, since jury nullification is legal, then the jurists have both the power AND the right to utilize this option.

                Now, about passing out pamphlets in front of the courthouse. It is the obligation of the court to inform the jurists of how the system works. if they omit parts of it then they are actually steering the jury to make a decision from certain choices. If the courts refuse to FULLY inform juries of there options then someone has to. The 1st amendment gives the public exactly that power and that right.

                 

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                  Gwiz (profile), Feb 7th, 2011 @ 10:40am

                  Re: Re: Re: Re: Re: Re: Re:

                  I think this is where you may be getting a little confused. You have the power to go 100 mph, but not the right when its illegal to go that fast. If the speed limit IS 100 mph then you have both the power and the right. With jury nullification its the same way. Nullification is not illegal and is actually part of the system.

                  Thank you. I was having trouble wording this correctly myself. What you articulated had formed in my head, but I couldn't get it into the right words.

                   

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                  Martin Halstesead, Feb 7th, 2011 @ 10:43am

                  Re: Re: Re: Re: Re: Re: Re:

                  What I find amazing in this entire debate is the idea that because a founding father SAID SOMETHING about jury nullification, that the concept is the law or part of the constitution. Everyone just seem to accept that jury nullification is a right (somehow somewhere) under US law because of a statement or two of personal opinion a couple of hundred years ago. If the founding fathers had, AS A MAJORITY wanted jury nullification to be a constitutional right, they would certainly have placed it in article III somewhere. It isn't there. So may people now use the constitution and the founder as a vehicle for their own beliefs of the way things ought to be. Wishful thinking does not a constitutional right make.

                   

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                    AR (profile), Feb 7th, 2011 @ 10:58am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    I know, It bothers me too sometimes. The thing to keep in mind is that it is a government "of the people" and "by the people", not for the people. All rights are inherently granted to the people, not to the government. The government is of and beholden to the people, not a separate entity to be held in opposition to the people. This, I believe, is part of both the declaration of independence and the constitution.

                     

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                    Gwiz (profile), Feb 7th, 2011 @ 10:59am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    Everyone just seem to accept that jury nullification is a right (somehow somewhere) under US law because of a statement or two of personal opinion a couple of hundred years ago.

                    I really don't know if it's law or not. What I do feel is that jury nullification is a natural right. If I am in that deliberation room, then yes my conscience plays a huge part in my decision, because when it's all said and done, I am the one who has live with myself and the choices I make.

                     

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                    Rhiadon (profile), Feb 7th, 2011 @ 11:01am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    Are rights granted by the Constitution or are they codified by the Constitution? This is not intended to be a rhetorical question. I have my opinion and that is rights are granted by natural law, not by a piece of paper. It just so happens that the Constitution mostly agrees with what I see as natural law.

                     

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                      AR (profile), Feb 7th, 2011 @ 11:12am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      In my opinion (which may not mean much) the rights are codified by the constitution. thats why it states that the people have the right to modify it and or abolish it (and the government for that matter).

                       

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                        AR (profile), Feb 7th, 2011 @ 12:24pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        Actually the more I think about it, I have to say both. the constitution is the set of laws granting certain powers to the government. Any powers or rights not stated there belong to the states and/or the people. see my other post below for the citation.

                         

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                          Rhiadon (profile), Feb 8th, 2011 @ 8:17am

                          10th Amendment

                          I'm glad you pointed that out. Thanks.

                          If I recall correctly, some (maybe most, I dunno) of the framers of the Constitution took issue with a Bill of Rights because they didn't feel that rights needed to be codified because they were not granted by the government, but by God (or nature or the Flying Spaghetti monster if you prefer). The 10th Amendment came from this to essentially state there are many other rights that we didn't talk about here, you still have those too.

                          At least this has been my understanding.

                           

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                      Anonymous Coward, Feb 9th, 2011 @ 12:01am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      Rights are most emphatically NOT granted by the Constitution. Things granted are privileges and may be revoked by the ruling authority at will and without cause or explanation. Rights simply exist and may only be limited with good reason.

                      This is how it's supposed to work. Mind you, many have a hard time understanding this concept, including (and especially) ruling authorities.

                       

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                    AJ, Feb 7th, 2011 @ 11:10am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    I couldn't find on this thread where anyone said it was a constitutional right, would you mind linking me to the post, I'm really trying to make since of everyones arguments.

                    I spent a little time reading up on Jury Nullification today and I came to the conclusion that their is no easy answer to this issue. Over the history of the U.S., there have been several decisions leaning both directions on this starting with the First Chief Justice of the US John Jay, and ending in 1997 with the Second Circuit.


                    IMHO
                    The court will never support Jury Nullification as it removes power from their hands and put's it into the people's. On the other side, if every citizen was completely educated on our court system, how it works, and what their rights were/were not, it would take forever to get anything done... and as a defendant, that would suck... . It would be like having a jury of all lawyers lol...

                     

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                    Richard (profile), Feb 7th, 2011 @ 11:18am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    In the UK jury nullification was established by the Haymarket case I guess the US simply "inherited" this concept from the UK.

                    Mind you you may be looking for the wrong thing. Your constitution may say something like "No jury member shall be prosecuted as a result of the jury decision."

                     

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                    RD, Feb 7th, 2011 @ 12:33pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    "What I find amazing in this entire debate is the idea that because a founding father SAID SOMETHING about jury nullification, that the concept is the law or part of the constitution."

                    Maybe, maybe not. But AJ asked for a citation on "the founding fathers were for this" (which, remember, he was using as his wave-away-the-argument-with-your-hand method of trying to discredit the commenter) and so I gave it to him. The fact that he is intellectually incapable of accepting rebuke or correction, or even basic "prove it" and you prove it points, is a different topic entirely. That the will then proceed to criticize, name call and use his "I'm in law school" as an attempt to further silence dissent (since he never admits when he is corrected or wrong) is what draws so much ire. Hypocrisy deserves scorn.

                     

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                      average_joe (profile), Feb 7th, 2011 @ 12:50pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      And your citations were pretty cool. Thanks for taking the time to look that up.

                       

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                        Dark Helmet (profile), Feb 7th, 2011 @ 1:18pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        AJ, do yourself a favor on this site and in life and be wary of lumping large groups of people in with one another (like a class action, ironically). I read through this entire thread, hearing you over and over again decry the universal abuse you suffer, and then I thought back not only to all the interesting discussions we've had (I would say nearly universally free of abuse), but those I've witnessed you have with others.

                        Victim cards are flimsy. RD acted the fool at the end of his post. Most of the people that reply to you, myself included, do not.

                        Nor do we appreciate your overgeneralizations....

                         

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            btr1701 (profile), Feb 7th, 2011 @ 10:49am

            Re: Re: Re: Re:

            > They have the power, sure, but not the right.

            But *everyone* has the right to talk about the jury's power, per the 1st Amendment.

             

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              average_joe (profile), Feb 8th, 2011 @ 7:19am

              Re: Re: Re: Re: Re:

              But *everyone* has the right to talk about the jury's power, per the 1st Amendment.

              Not when it amounts to jury tampering.

               

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                btr1701 (profile), Feb 8th, 2011 @ 9:21am

                Re: Re: Re: Re: Re: Re:

                > > But *everyone* has the right to talk about
                > > the jury's power, per the 1st Amendment.

                > Not when it amounts to jury tampering.

                I'll throw one of your favorite challenges back at you:

                Cite? [Specifically a citation to caselaw or statute that says that engaging the public on a subject regarding an aspect of the judicial system (which itself is completely legal) is the equivalent of "jury tampering" merely because some judge would rather his/her juries don't know about it.]

                 

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                  average_joe (profile), Feb 8th, 2011 @ 9:33am

                  Re: Re: Re: Re: Re: Re: Re:

                  I'll throw one of your favorite challenges back at you:

                  Cite? [Specifically a citation to caselaw or statute that says that engaging the public on a subject regarding an aspect of the judicial system (which itself is completely legal) is the equivalent of "jury tampering" merely because some judge would rather his/her juries don't know about it.]


                  Read the Turney case I quoted below for starters, and then the Cox v. Louisiana case I quoted as well.

                  It's OK to do that to the general public, but when it's specifically targeted at prospective jurors with the intent to influence them, it's tampering.

                   

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                    btr1701 (profile), Feb 8th, 2011 @ 10:34am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    > It's OK to do that to the general
                    > public, but when it's specifically
                    > targeted at prospective jurors...

                    The general public *are* the prospective jurors in any given community.

                     

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                      average_joe (profile), Feb 8th, 2011 @ 10:53am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      The general public *are* the prospective jurors in any given community.

                      Not as within the ambit of the jury tampering laws. The prospective jurors being discussed here are those who received a summons to report to the courthouse for jury duty and were in fact reporting for duty. We're not talking about the general public at large.

                       

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                        btr1701 (profile), Feb 8th, 2011 @ 12:36pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        > The prospective jurors
                        > being discussed here are
                        > those who received a summons
                        > to report to the courthouse
                        > for jury duty and were in fact
                        > reporting for duty.

                        So if I take out a billboard along Main Street which says: "To all citizens who have received a jury summons: know this before you report - jury nulllification is legal!"... that can be suppressed by the government?

                         

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                          average_joe (profile), Feb 8th, 2011 @ 12:52pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          So if I take out a billboard along Main Street which says: "To all citizens who have received a jury summons: know this before you report - jury nulllification is legal!"... that can be suppressed by the government?

                          Probably not, but who cares?

                           

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                            btr1701 (profile), Feb 8th, 2011 @ 4:10pm

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                            > Probably not, but who cares?

                            Everyone involved in this discussion, probably.

                             

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                              Anonymous Coward, Feb 9th, 2011 @ 12:56am

                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                              In my opinion, the whole jury tampering argument is BS. It's a convenient excuse for judges to use when they want to limit the jury's knowledge of their own power. They use examples of specific actions which are more or less obvious as objectionable to justify restriction of actions which are more or less not objectionable, at least to the average citizen.

                              I don't believe that it's malicious. But I think they have a poor opinion of the average persons ability to discern an unjust law and fear the repercussions of masses of people exercising this 'right'. Maybe they are right. But I doubt it.

                              The ONLY possible effect of jury nullification is to find a defendant innocent, yet the specter of defendants found guilty unjustly and unfair trials comes up again and again.

                              The state is the only one complaining about these actions, and yet there is no law against them. Why is that?

                              OK Admittedly, there are people who take the other side of this discussion. But I'm not seeing an outcry for laws to remove this obvious 'loophole'. How about it guys? How many of you think there ought to be a law restricting this 'ability', to use a neutral term?

                              How many think judges should be required to inform jurors of this power? I vote for that second one.

                               

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        Anonymous Coward, Feb 7th, 2011 @ 9:17am

        Re: Re:

        Oh AJ, your ability to play dumb is so entertaining.

         

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          average_joe (profile), Feb 7th, 2011 @ 9:23am

          Re: Re: Re:

          Oh AJ, your ability to play dumb is so entertaining.

          And the ability of people on techdirt to hurl insults and venom at me never ceases to amaze me. I just don't get it. Why are people so angry when someone disagrees?

           

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            Richard (profile), Feb 7th, 2011 @ 9:27am

            Re: Re: Re: Re:

            We are agreed that you are crazy. Sadly we are also agreed that you are not crazy enough to be right.

             

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            Mike Masnick (profile), Feb 7th, 2011 @ 10:06am

            Re: Re: Re: Re:

            And the ability of people on techdirt to hurl insults and venom at me never ceases to amaze me. I just don't get it.

            AJ, be fair. You have stated significantly worse insults in my direction when I disagreed with you in the past. Stop playing victim, or people are going to start dredging up your past comments.

             

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              Anonymous Coward, Feb 7th, 2011 @ 10:36am

              Re: Re: Re: Re: Re:

              WTG Mike! Support the people yelling down your opposition. Perhaps you want to tell people like RD to put a sock in it as well. It's always the same few instigators that feel they have to attack the opposition unfairly. AJ has only given them back what he has given them.

              To quote you own posts, "oh grow up".

               

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                RD, Feb 7th, 2011 @ 12:26pm

                Re: Re: Re: Re: Re: Re:

                "Perhaps you want to tell people like RD to put a sock in it as well. It's always the same few instigators that feel they have to attack the opposition unfairly."

                Wow really? I'm BARELY on here and MAYBE post once every week or two, and I'm an "instigator" now?? Awesome! I have some pretty AMAZING pull then, dont I? Barely any comments and I am part of a massive attack force!

                Might want to look at the record again on just who is slinging more mud (and FUD) around here. I'm sure you'll see others (AC, AJ, etc) names up there a LOT (like, an order of magnitude) more than mine. But thanks for the props!

                 

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              average_joe (profile), Feb 7th, 2011 @ 10:53am

              Re: Re: Re: Re: Re:

              AJ, be fair. You have stated significantly worse insults in my direction when I disagreed with you in the past. Stop playing victim, or people are going to start dredging up your past comments.

              Your response is really disappointing. Rather than promote a positive discussion, you are supporting those who are simply throwing out insults. I'm not surprised by this, but I am disappointed.

               

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                Anonymous, Feb 7th, 2011 @ 11:30am

                Re: Re: Re: Re: Re: Re:

                Why would Masnick possibly support you here?

                You're one of the only people with enough sac to call him on his constant BS.

                He wants dumb sycophants, not posters that are smarter than him.

                 

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                Anonymous Coward, Feb 7th, 2011 @ 12:11pm

                Re: Re: Re: Re: Re: Re:

                "Rather than promote a positive discussion, you are supporting those who are simply throwing out insults."

                Oh, you mean like that average_joe guy?

                 

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                Anonymous Coward, Feb 7th, 2011 @ 2:17pm

                Re: Re: Re: Re: Re: Re:

                Your response is really disappointing. Rather than promote a positive discussion, you are supporting those who are simply throwing out insults. I'm not surprised by this, but I am disappointed

                This is sort of the same feeling I get around here too. While I can understand which side of the (logical) argument Mike may come down on, I cannot for the life of me understand why he would want to support and promote antagonistic reactions from certain posters here.

                I suspect it has to do with Mike feeling attacked personally, not being in the right frame of mind to separate out the attack of ideas (aka, "mike, you got it wrong") from more hateful attacks ("Mike, you are a frigging idiot"). Intelligent people can disagree. They can accept that everyone doesn't agree with them. The smartest of them use that opposition and inspection of ideas to sharpen their messages and fix flaws in their theories. Alas, that does not appear to be the Techdirt way.

                AJ, don't let the people here get you down. Understand that the react with fear, anger, and resentment when you kick their sacred cows. Those beliefs are what sets the Techdirt universe, and knocking them down or making them look less than complete will get you nothing but hostile reactions.

                Just smile, nod your head, and be ready for someone to tell you to "grow up". You'll be fine.

                 

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                Mike Masnick (profile), Feb 7th, 2011 @ 5:43pm

                Re: Re: Re: Re: Re: Re:

                Your response is really disappointing. Rather than promote a positive discussion, you are supporting those who are simply throwing out insults. I'm not surprised by this, but I am disappointed.

                I was not supporting those throwing out insults. Just pointing out that the playing victim act was childish.

                Look, it's the internet. Some people are obnoxious. You included at times. Pretending that this is something new and you're some fragile flower who can't take it, is pretty funny.

                And, I should note that one of the guys supporting you was the one who started the "FOAD" trend on this site as he used to use that comment all the time when posting under one of his many previous characters.

                I agree that throwing out insults is not a great way to argue. But which had a bigger impact on this thread? His one post with tons of content and a silly insult at the bottom, or you then hijacking the thread with half a dozen "oh woe is me!!!!" comments about how you can't take RD blowing his lid at you for not doing basic research.

                 

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                  average_joe (profile), Feb 7th, 2011 @ 7:32pm

                  Re: Re: Re: Re: Re: Re: Re:

                  I was not supporting those throwing out insults. Just pointing out that the playing victim act was childish.

                  Look, it's the internet. Some people are obnoxious. You included at times. Pretending that this is something new and you're some fragile flower who can't take it, is pretty funny.

                  And, I should note that one of the guys supporting you was the one who started the "FOAD" trend on this site as he used to use that comment all the time when posting under one of his many previous characters.

                  I agree that throwing out insults is not a great way to argue. But which had a bigger impact on this thread? His one post with tons of content and a silly insult at the bottom, or you then hijacking the thread with half a dozen "oh woe is me!!!!" comments about how you can't take RD blowing his lid at you for not doing basic research.


                  You're right, it is the internet, and rather than respond to the childish insults I receive, from now on, I'll try and just ignore them.

                  He was right about the Founding Fathers. I didn't know that stuff, and I'm glad to now know it. I've expressed my appreciation for this now three times in this thread.

                  After doing some research this evening, though, turns out I'm right about there being no right to jury nullification. Do you care to admit that your claim that the people in front of the courthouse were simply "informing a juror of their rights as a juror" is wrong as a matter of law? I doubt it.

                   

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                    Mike Masnick (profile), Feb 7th, 2011 @ 7:56pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    Do you care to admit that your claim that the people in front of the courthouse were simply "informing a juror of their rights as a juror" is wrong as a matter of law? I doubt it.

                    I do not believe it was wrong. I believe it remains accurate, and that the banning of such pamphlets is clearly prior restraint. There is no compelling interest in stopping people from their right to free speech.

                    Once again we see that you seem to consider the First Amendment some sort of "lesser" amendment to the laws you prefer.

                     

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                      average_joe (profile), Feb 7th, 2011 @ 8:04pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      I do not believe it was wrong. I believe it remains accurate, and that the banning of such pamphlets is clearly prior restraint. There is no compelling interest in stopping people from their right to free speech.

                      Once again we see that you seem to consider the First Amendment some sort of "lesser" amendment to the laws you prefer.


                      I wasn't referring to their right to say it, I was referring to what they were saying. There is no right for jury nullification, so those people are not "informing a juror of their rights as a juror" as you claimed. Whether or not it's prior restraint is debatable, but that's a different matter. If you change your statement to "informing a juror of their POWER as a juror," I'd agree with you. But it's not a right.

                       

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                        Anonymous Coward, Feb 7th, 2011 @ 8:42pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        There is no right for jury nullification, so those people are not "informing a juror of their rights as a juror" as you claimed

                        It's more than a right, it's an obligation in some cases. Sometimes the law ignores basic human rights or even tries to usurp them, yet they remain, and a human being has the right and obligation to be fair and do what is right. Lawyers and judges can't change that.

                        Sometimes AJ sounds like he thinks he's studying to be G*d rather than just another lawyer.

                         

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                          average_joe (profile), Feb 7th, 2011 @ 8:55pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          It's more than a right, it's an obligation in some cases. Sometimes the law ignores basic human rights or even tries to usurp them, yet they remain, and a human being has the right and obligation to be fair and do what is right. Lawyers and judges can't change that.

                          This is just simply not true. There is without question no right to nullification. And as the quotes I provided demonstrate, there is in fact the affirmative duty not to nullify.

                          Sometimes AJ sounds like he thinks he's studying to be G*d rather than just another lawyer.

                          I'm not really sure how you think my pointing out what the law in fact actually is makes me sound like God. I'm simply reciting facts.

                           

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                            Anonymous Coward, Feb 7th, 2011 @ 9:16pm

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                            ...a human being has the right and obligation to be fair and do what is right. Lawyers and judges can't change that.

                            This is just simply not true.


                            And here we have the essence of AJ.

                             

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                              average_joe (profile), Feb 7th, 2011 @ 9:43pm

                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                              I wasn't disagreeing with the "lawyers and judges can't change that" part. I was disagreeing with the parts that came before that. I stand by my statement that it simply is not true, and I've offered plenty of evidence to back it up. You've offered no evidence for your position.

                              That is the essence of the AC.

                               

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                                Anonymous Coward, Feb 7th, 2011 @ 10:26pm

                                Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                I wasn't disagreeing with the "lawyers and judges can't change that" part. I was disagreeing with the parts that came before that.

                                Yeah, that would be the "a human being has the right and obligation to be fair and do what is right" part. I know you don't believe that's true, but that's you. I do.

                                That is the essence of the AC.

                                Why, thank you!

                                 

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                            Anonymous Coward, Feb 7th, 2011 @ 10:41pm

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                            He might be referring to a moral right, as opposed to a legal right.

                            For example, someone may have had no legal right to help a slave escape ownership in 1850, but they would have had a moral right to do so.

                             

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                    BBT, Feb 8th, 2011 @ 6:15am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    "After doing some research this evening, though, turns out I'm right about there being no right to jury nullification. "

                    In the future, you might want to try doing research before coming to your conclusions.

                     

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                      average_joe (profile), Feb 8th, 2011 @ 6:32am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      In the future, you might want to try doing research before coming to your conclusions.

                      I knew the basics, I just didn't know the relevant caselaw. Now I know both. At least I did research, as opposed to many others who simply put forth their erroneous beliefs as fact. But hey, call me out and put me down, not them.

                       

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                  Anonymous Coward, Feb 8th, 2011 @ 6:58am

                  Re: Re: Re: Re: Re: Re: Re:

                  And, I should note that one of the guys supporting you was the one who started the "FOAD" trend on this site as he used to use that comment all the time when posting under one of his many previous characters.

                  Do you or do you not support the idea of anonymous posting?

                   

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            ChimpBush McHitlerBurton, Feb 7th, 2011 @ 10:37am

            Re: Re: Re: Re:

            Joe, your understanding of things is so poor and so wrong, that it actually causes me physical pain to read your posts.

            CBMHB

             

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              average_joe (profile), Feb 7th, 2011 @ 10:54am

              Re: Re: Re: Re: Re:

              Then don't read them. No one's forcing you to.

               

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                ChimpBush McHitlerBurton, Feb 7th, 2011 @ 3:30pm

                Re: Re: Re: Re: Re: Re:

                Wassa matter, Joe?

                Don't recognize your own words?

                Perhaps you should follow your own advice...

                CBMHB

                 

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                  average_joe (profile), Feb 8th, 2011 @ 7:23am

                  Re: Re: Re: Re: Re: Re: Re:

                  Of course I do. That statement is simply erroneous. Show me where in this thread my understanding has been poor and wrong. I'm one of the only ones stating actual facts. What have you added?

                   

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            Anonymous Coward, Feb 7th, 2011 @ 12:11pm

            Re: Re: Re: Re:

            It was a compliment, actually. Obviously, to play dumb, you have to be somewhere above dumb.

            But of course, you're still playing dumb.

             

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    Not a Lawyer, Feb 7th, 2011 @ 8:48am

    Isn't there a flipped version or two of 'jury nullification' that can happen?

    Like the reduction of damages awarded in the McDonald's coffee case or any other case where damages are lowered?

    Or wiping out the verdict completely? Although I'd imagine that might have more to do with procedural issues.

    Just curious.

     

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      Rich, Feb 7th, 2011 @ 8:52am

      Re:

      Why do people always bring up the McDonald's Hot Coffee Case as an example of a frivolous lawsuit? Look up the details of that case. It was anything but frivolous.

       

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        Anonymous Coward, Feb 7th, 2011 @ 9:00am

        Re: Re:

        Oy, there. I'm NOT saying it was frivolous at all - I am aware of the details also. In fact, I use it as an example here because many don't realize that the jury's award to the victim was substantially lowered from what was blared in headlines.

        It was curiosity on my part about a flipped version of jury nullification - the jury decided one thing but their verdict was 'nullified' afterward. That's all.

         

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        Pixelation, Feb 7th, 2011 @ 9:04am

        Re: Re:

        Looked up the details and it sure looks frivolous to me. If I buy a Maserati and crash at 150mph, should I be able to sue because it is made to go faster than other cars and there is no warning label on it?

         

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          Almost Anonymous (profile), Feb 7th, 2011 @ 10:11am

          Re: Re: Re:

          Then reading must not be your strong suit. The warning labels were McD's sarcastic over-reaction to losing what was actually a very legitimate damage claim; to the best of my knowledge, there is still no law requiring those labels.

           

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            Pixelation, Feb 7th, 2011 @ 5:36pm

            Re: Re: Re: Re:

            Excuse me for being simple. To me it's frivolous, though perhaps not to the lawyers and courts. Why do I say that? Dumb ass puts hot coffee between her legs, spills it and blames McDonalds. Hey dumb ass, coffee is HOT be careful. Next time she is there she should walk behind the counter and stick her hand in the fryer. That should net her a fortune.

             

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          Rich, Feb 7th, 2011 @ 10:35am

          Re: Re: Re:

          Where did you look? McDonald's had been warning by the health department on several occasions that they keep their coffee much to hot (180 degrees as oppose to 160). The woman who filed suit didn't just get a little scalding from the coffee. It was so hot it caused 3rd degree burns. She needed three reconstructive surgeries. I don't consider that frivolous.

           

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            freak (profile), Feb 7th, 2011 @ 1:05pm

            Re: Re: Re: Re:

            Just a little pet peeve here, if you don't mind?

            Coffee is required to be served that hot, by nature of coffee. Would you like me to go over the chemistry which describes the aromatic oils that create the taste of coffee? The aromatic oils have to be vaporizing as you drink it, you see. The best is actually at 200 degrees, not 180, which McDonalds keeps it at. And even then, 180 degrees in the pot is made so that at the cup, it will be about 150 after stirring and everything.
            Even the 'National Coffee Association of U.S.A.' says that coffee should be maintained at 180 degrees.

            Second, in reaction to AA above, McD's actually had those warning labels on the coffee cups BEFORE this lawsuit, and the jury had to specifically decide that the warning labels were not required. Having warning labels is just a good way to get rid of lawsuits, even if no law requires them.

            Third, yes, these lawsuits are valid. Coffee and other hot foods which can cause burns should have, as McD's puts it, "Superior handling systems", by which they mean the cup it was in was at fault, not the temperature of the coffee.

            Fourth, do you know how many dozens of these lawsuits go through each year, not only to McD's, but also to other restaurants like Tim Horton's, Burger King or Starbucks? If you said that each of them loses millions a year due to 'hot coffee' type lawsuits, you'd be right. Liebeck just got a lot of press, that's all.

             

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              JEDIDIAH, Feb 7th, 2011 @ 1:39pm

              corporate apologists

              > Just a little pet peeve here, if you don't mind?

              Yes. Because reality is a pet peeve.

              McDonalds keep their coffee hotter than anyone else and NO ONE that cares about the actual product treat it like McDonalds does including overheating it. Starbucks in particular is a good example here. You could bathe yourself in their stuff without running the same risks you run with McCoffee.

              The jury in question probably responded they way they did due to the fact that McDonalds response to a recurring problem was not to change their approach or to inform their customers but to suppress any and all information about the situation.

              Although McDonalds sells crap in general regardless.

               

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                freak (profile), Feb 7th, 2011 @ 2:43pm

                Re: corporate apologists

                Tom Horton's keeps coffee at or above 190 farenheit in the pot.

                Starbucks hold coffee at 175 farenheit in the cup, (hotter in pot).
                Denny's, 175 in pot.

                "much lower"?


                I can provide citations, sir, or would you like me to go into excruciating detail into the chemistry of coffee, as I offered?

                 

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        btr1701 (profile), Feb 7th, 2011 @ 10:53am

        Re: Re:

        > Why do people always bring up the McDonald's Hot
        > Coffee Case as an example of a frivolous lawsuit?

        Considering that's not what happened here, I'm not sure why your question is relevant.

        He didn't say it was frivolous case, he merely used it as an example of a case where a jury's initial award of damages was subsequently lowered by the court.

         

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      Anonymous Coward, Feb 7th, 2011 @ 10:20am

      Re:

      Typically, the standard is blatant disregard of the facts, or some other unusually high standard which is essentially "There were pictures of the guy at McDs when the crime took place across the state, but they were ignored."

       

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      btr1701 (profile), Feb 7th, 2011 @ 10:52am

      Re:

      > Isn't there a flipped version or two of 'jury
      > nullification' that can happen?

      > Like the reduction of damages awarded in the
      > McDonald's coffee case or any other case where
      > damages are lowered?

      When the court reduces a jury's award, it's called remittitur, not nullification. (And when they increase a jury's award, it's called addittur.)

       

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        Anonymous Coward, Feb 7th, 2011 @ 12:43pm

        Re: Re:

        Thanks for the replies, all. I guess it just struck me that jury nullification is a misleading term to regular folk - it sounds like the examples I listed above rather than the jury nullifying the laws under which the charges or suits are brought.

        Also that juries as functionaries are held in esteem...except when they aren't, ha. Well, that judges have the last word, that is to say.

         

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    Infowars, Feb 7th, 2011 @ 8:57am

    The 4th Branch of the .GOV tyranny machine

    The jury box..


    Let's take our country back!

     

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    Allan R. Wallace (profile), Feb 7th, 2011 @ 8:58am

    Jury Novation

    "In the UK at least the jury has the right to vote innocent if they disagree with the law. Surely you have a similar system?" - Anonymous Coward

    The US had such a system, but judges jealous over their power refuse to acknowledge it. Judges want their instructions to the jury to be the only instructions available.

    From the page my name is linked to:

    . . . Of even greater power was jury nullification which allowed juries to strike down (nullify) unjust laws and thereby declare a defendant not guilty. Paths to protect from over reaching governments were emerging and growing.

    "The jury has the right to judge both the law as well as the fact in controversy." John Jay, first U. S. Supreme Court Chief Justice

    The influence of this idea can be seen in a quote from Thomas Jefferson, author of the Declaration of Independence and third president of the United States of America.

    "If a law is unjust, a man is not only right to disobey it, he is obligated to do so." Thomas Jefferson

     

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      J News, Feb 7th, 2011 @ 9:09am

      Re: Jury Novation

      I believe the reason why Jury Nullification is in such disfavor today is because during segregation, it was widely used by all-white juries to acquit whites who lynched/murdered blacks, under pretty much the same rationale that people today use today -- that the jury, not the government, should be able to decide what is and isn't illegal.

      This is why we can't have nice things.

       

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        Chris in Utah (profile), Feb 7th, 2011 @ 11:48pm

        Re: Re: Jury Novation

        Heh, ironic since nullification was exactly helped the civil rights movement.

        However, jury veto power is still recognized. In 1972 the D.C. Circuit Court of Appeals held that the trial jury has an "...unreviewable and irreversible power...to acquit in disregard of the instruction on the law given by the trial judge." The pages of history shine upon instances of the jury's exercise of its prerogative to disregard instructions of the judge; for example, acquittals under the fugitive slave law (473F 2dl 113)

        So I respect your view on disfavor but not the premise for it.

         

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    Hugh Mann (profile), Feb 7th, 2011 @ 9:02am

    Jury is the finder of fact

    The jury is a finder of fact. The judge is the arbiter of the law, but needs the jury to tell him/her if the evidence presented fulfills the elements of the crime(s) charged.

    The jury is not there to express its opinion regarding the law, and should not be arguing the merits of the law itself. Its function is purely one of factual determination.

    What this "Fully Informed Jury Association" is doing is basically encouraging jury nullifcation. As presented here, they're not "informing" the jurors of anything. They are encouraging them to consider ignoring the law and misrepresent the facts in order to arrive at a verdict that is preferred by that juror - regardless of whether the defendant is actually guilty of the crime(s) charged.

    As for the claim above that the Founding Fathers actually considered jury nullification to be a "fourth" check and balance, that's news to me. They were all very much law-and-order guys, and they expected disputes regarding our laws to be resolved within the rules they provided. I'm not aware of any of them considering that jury nullification was a useful way to deal with a law that got passed by Congress, who then overrode a Presidential veto, and the resulting law then survived judicial review. In fact, if the jury acquits a defendant based on jury nullification, the law might never actually get fixed, since it will not be subject to judicial review - since you can't appeal a verdict that never happened.

    HM

     

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      Hugh Mann (profile), Feb 7th, 2011 @ 9:14am

      Re: Jury is the finder of fact

      I see some later posts above with cites to early sources that, if they are not outright arguing for a "right" for jury nullification, are at least leaving room for it to exist in a sort of tolerated form. Interesting. I still believe that the Founding Fathers didn't look at the jury system as being a check EVERY TIME on EVERY LAW, but that it was a last-ditch effort that could be made in special circumstances. What good is the legal system if any random group of 12 citizens can effectively overturn any law they want to?

      Certainly, as some have mentioned, there's nothing that prevents a juror to cast a vote based on personal opinion rather than an objective assessment of the evidence presented. However, would not that jury nullification can work both ways. If they've a mind to, a jury can convict, even if the evidence doesn't really support a conviction. Of course, that conviction can be appealed, but findings of fact in the trial court are generally given a lot of deference on appeal.

      HM

       

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        Sneeje (profile), Feb 7th, 2011 @ 10:32am

        Re: Re: Jury is the finder of fact

        It wouldn't be an overturn, just a pass (meaning the punishment for this law cannot be applied in this particular case).

        That doesn't completely invalidate your point though--if enough groups of 12 people do that, the law is effectively "toothless" and therefore de facto overturned.

        I'm just saying it isn't an instantaneous thing.

         

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      Bengie, Feb 7th, 2011 @ 9:21am

      Re: Jury is the finder of fact

      The jury has to be unanimous. If one person in the group thinks someone should get of free on murder, that person has to convince all the others to think his way.

      Nullification is supposed to be a way to block frivolous lawsuits and remove unfair laws.

      Did someone break into your house and hurt themselves while trying to steal your stuff? Normally you would be held responsible for their injuries because of the law, but if the jury knows about nullification, you could be acquitted.

       

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      Jason, Feb 7th, 2011 @ 9:31am

      Re: Jury is the finder of fact

      Actually, yours is a claim. Theirs are citations. Theirs are bigger than yours.

       

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      Richard (profile), Feb 7th, 2011 @ 9:47am

      Re: Jury is the finder of fact

      The jury is a finder of fact

      Wrong. The jury is there to normalise the proceedings relative to the defendant. Professional lawyers would do a much better job of finding fact - but the jury (supposedly a jury of peers of the defendant) are better able to judge that part of guilt that derives from intent. They are there to put themselves in the defendant's shoes and ask themselves if they would have done the same and/or if they would have felt that they were doing wrong. Many laws have a criterion that mentions a "reasonable man". The jury is supposed to consist of just such reasonable men.

      In short they are there to prevent the judicial system from drifting away from the general population.

       

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        Anonymous Coward, Feb 7th, 2011 @ 10:28am

        Re: Re: Jury is the finder of fact

        Unless every law school course I've taken is incorrect, the trial court(i.e. Jury or Judge if it's a bench trial) is the finder of fact, and in many jury trials the jury will apply the facts to the law to determine if it fits(this depends on what kind of laws you're adjudicating). Jurors are great for determine subjective things, such as intent, when necessary.

         

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        Martin Halstead, Feb 7th, 2011 @ 10:34am

        Re: Re: Jury is the finder of fact

        What you are describing is one duty of a jury in a single class of cases, those involving civil negligence. Outside of the question of whether a duty was negligently breached, e.g how would the hypothetical reasonable person behave under these circumstances, it has no application.

         

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        Hugh Mann (profile), Feb 7th, 2011 @ 10:54am

        Re: Re: Jury is the finder of fact

        In the US legal system, the jury is the finder of fact. Those are the only questions the courts asks them to answer. They are not there to put themselves in the defendant's shoes, anymore than they're there to put themselves in the victim's (or plaintiff's) shoes.

        Your spelling and grammar lead me to believe you're posting from the UK, where it may very well be different.

        HM

         

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          average_joe (profile), Feb 7th, 2011 @ 11:22am

          Re: Re: Re: Jury is the finder of fact

          They are not there to put themselves in the defendant's shoes, anymore than they're there to put themselves in the victim's (or plaintiff's) shoes.

          Agreed. I just did a workshop this past weekend on trial tactics, and we learned that as soon as you ask the jury to step into someone's shoes, you can expect the other side to move for a mistrial. That's a no-no.

           

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            Richard (profile), Feb 7th, 2011 @ 11:41am

            Re: Re: Re: Re: Jury is the finder of fact

            You are going beyond what I actually said.

            Your (US) jury system is descended from our (UK) one and as such the jury embodies the principle of "trial by one's peers".
            Of course it is not up to the trial lawyers to explicitly appeal to "put yourself in the defendant's shoes" but I would have thought that a juror who didn't do that (and maybe in the plaintiff/victim's shoes too) would not be human.

            If they are not there for that purpose then I would like to know what they are for - since I can see no reason why they should be any better at determining matters of fact than a judge.

             

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              Hugh Mann (profile), Feb 7th, 2011 @ 12:39pm

              Re: Re: Re: Re: Re: Jury is the finder of fact

              And, actually, there are those who think "professional" jurors (e.g., a panel of judges) would be better than 12-person panel of local residents annoyed because they couldn't get out of jury duty.

              I do see your point better now, thanks for the clarification. However, I don't view them so much as being a sort of proxy for the defendant as I see them as a bunch of formal witnesses to make sure the state (as embodied by the judge) knows it's being watched. Nothing even close to be so personal as to inject some sort of sympathy/empathy/understanding of one side or the other. I do agree that, as human beings, their varied experiences and characters will come into play and color their respective views of the evidence in many ways.

              In any case, as a formal element of the US judicial system, the jury is the finder of fact. Questions of fact go to the jury. The judge handles questions of law. But, as you've pointed out, as with any human activity, these roles are fulfilled by people who can't leave themselves out on the courthouse steps and act a some sort of cold, completely-objective machine. That's just not how we're wired.

              HM

               

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          JEDIDIAH, Feb 7th, 2011 @ 1:44pm

          Re: Re: Re: Jury is the finder of fact

          > They are not there to put themselves in the defendant's shoes

          Sure they are. For any finding that requires the consideration of "intent", the jury is there to judge that intent. That includes "reasonable man" type things where the intent being contemplated means the difference between a conviction for murder versus manslaughter.

           

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        btr1701 (profile), Feb 7th, 2011 @ 10:58am

        Re: Re: Jury is the finder of fact

        > > The jury is a finder of fact

        > Wrong.

        Funny. That's not what all the legal textbooks and court opinions say.

        I guess you know better.

         

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          Richard (profile), Feb 7th, 2011 @ 12:00pm

          Re: Re: Re: Jury is the finder of fact

          Funny. That's not what all the legal textbooks and court opinions say.

          They would say that wouldn't they.

          That may be the way the legal establishment likes to view the matter - but although it it is the reason why they were put there in the first place (because originally juries had an investigative role - there being no police at the time) it isn't the reason we have them now. If we simply wanted to establish facts then a jury isn't the institution that we would invent. The reason we have juries it to keep the legal system connected to society. Finding facts is the function of the jury but not their purpose.

           

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      Anonymous Coward, Feb 7th, 2011 @ 12:03pm

      Re: Jury is the finder of fact

      as a long time reader of TD I know that most if not all regulars have little if any respect to comments posted by ACs, but IMHO that must be the most objective comment i read in here in the 5 (maybe more) years ive been lurking on this site.

       

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      Anonymous Coward, Feb 7th, 2011 @ 1:09pm

      Re: Jury is the finder of fact

      Why do we have juries?
      Is not to just have fact finders is to balance the courts, is not about court rules, is about societies rules, the court system is bound by a jury that can dismiss all their arguments if they don't think it is fair and just, they need to show everyone that the court is a serious place not threaten others and make believe they can do anything they want, judges and prosecutors are not there to get high on power, they are there to do a job and if that job is not being correctly done the people have the power to actually tell them in no uncertain terms to f. off.

       

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      Anonymous Coward, Feb 7th, 2011 @ 8:19pm

      Re: Jury is the finder of fact

      As for the claim above that the Founding Fathers actually considered jury nullification to be a "fourth" check and balance, that's news to me. They were all very much law-and-order guys...

      Yeah, not at all the types to revolt against the law and order of the King.
      /s

       

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    Anonymous Coward, Feb 7th, 2011 @ 9:10am

    What? A judge making up stuff for his own interests? IMPOSSIBLE I TELL YOU!!!

     

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    Anonymous Coward, Feb 7th, 2011 @ 9:24am

    There is a difference between telling someone to vote with their conscience and telling them they can vote in a manner that is against what they consider an unjust law.

    By voting with their conscience they can find someone not guilty because they feel sorry for the defendant. Or they can vote guilty because they don't like the way the guy looks.

    Just saying you can vote against what the law says without explaining the specifics of the actual intent of jury nullification would be wrong, in my opinion.

    I haven't seen the actual pampklet so I don't know if they explain this ot not.

     

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    BongoBern, Feb 7th, 2011 @ 9:43am

    Jury Tampering

    Suppose they were to try an abortion case. The pamphlet could be interpreted as telling jurers not to follow the law as it pertains to the right of a woman to have an abortion, but to the emotional sludge cooked up by anti-choice groups. "Follow your heart" is not always the same as "follow the law."

     

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      Richard (profile), Feb 7th, 2011 @ 9:53am

      Re: Jury Tampering

      Suppose they were to try an abortion case. The pamphlet could be interpreted as telling jurers not to follow the law as it pertains to the right of a woman to have an abortion, but to the emotional sludge cooked up by anti-choice groups. "Follow your heart" is not always the same as "follow the law."

      Believing something is wrong is not the same as believing that it should be illegal - still less that it is illegal

       

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      Anonymous Coward, Feb 9th, 2011 @ 1:28am

      Re: Jury Tampering

      Since abortion is legal, it's not clear why there would be an abortion case to which we could apply the principle of jury nullification. Assuming for the moment that there was such a case, the only possible effect of jury nullification would be to find the defendant innocent IF AND ONLY IF the jurors found the law unjust. There can be no 'false positive' from jury nullification. The concept does not allow for finding innocents guilty.

      In any event, I think the 'vote your conscience' line has been interpreted a bit too literally. In this context, it doesn't mean 'Find the infidels guilty if you don't like the look of them!' It means consider whether you find the law just as applied in this case, and acquit if the law fails the test. Some would still object to this, but let's at least agree on what jury nullification is so we can all talk about the same thing.

       

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    Dave (profile), Feb 7th, 2011 @ 9:53am

    If you have the power to prevent injustice, you have an obligation to do so

    They have the power, sure, but not the right. That's my understanding anyway.

    If you, as a juror, have the power to prevent injustice, and you fail to do so, then you are responsible for the injustice. "I was just following orders" doesn't cut it.

     

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      average_joe (profile), Feb 7th, 2011 @ 10:05am

      Re: If you have the power to prevent injustice, you have an obligation to do so

      Every juror isn't there to impose his or her own version of justice. That's anarchy.

       

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        Richard (profile), Feb 7th, 2011 @ 10:26am

        Re: Re: If you have the power to prevent injustice, you have an obligation to do so

        Lord Mansfield (1784) would have agreed with you on that point - but he admitted that in practice the jury system allows it.

        So the jury who usurp the judicature of law, though they happen to be right, are themselves wrong, because they are right by chance only, and have not taken the constitutional way of deciding the question. It is the duty of the Judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences.

        I would contend that the jury is there for precisely that purpose - (although mostly for marginal cases rather than complete reversal.)

         

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    Vidiot (profile), Feb 7th, 2011 @ 9:59am

    "Apparently, there's a group called the Fully Informed Jury Association (FIJA)..."
    If it was my intention to only partially inform jurors -- that is is, with one particular view -- I think I'd call my bogus group "the Fully Informed Jury Association".

     

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    iamtheky (profile), Feb 7th, 2011 @ 10:02am

    Re: AJ

    you absolutely have the right to dissent when you are a member of a jury. Stop with the semantics, and you should stop getting abused.

    May have to whip out my 'average_ioe' account if you are going to be overly sensitive today

     

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    Anonymous Coward, Feb 7th, 2011 @ 10:05am

    Jury nullification is one of those "last resort" sorts of ideas, where the the jury truly thinks that the law and the situation is out of whack. It shouldn't be the first thing.

    What this group wants to do is turn every jury into source of activism. The real effect may be that every case ends up with a hung jury, because one person decides "it ain't right for the (insert racial / sexual / color here) man" or "it ain't right for that old person" or "it's ain't right for that guy".

    At that point, it stops being jury nullification, and starts being legal system nullification. Snitches get stitches, and juries better not agree with the law.

    Misinforming or misleading juries about their role in the process, moving nullification from a last resort to a first step would be corrupting the system. That isn't fair for anyone.

     

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      Almost Anonymous (profile), Feb 7th, 2011 @ 10:20am

      Re:

      Ok, how do you justify the fact that judges very deliberately misinform jurors about their instructions when they not only do not mention the right of jury nullification, but also ban discussion of it outside of their courtroom?

      In fact, most instructions run diametrically opposite to the concept of jury nullification, thereby giving the deliberate impression that there is no such thing: "You must find only according to the law as given to you..." and so on. The instructions are a flat-out lie.

      Also, considering the kinds of laws being passed nowadays, I don't have a real problem with "legal system nullification." Frankly, the whole thing is broken anyway.

       

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        Anonymous Coward, Feb 7th, 2011 @ 10:25am

        Re: Re:

        Ok, how do you justify the fact that judges very deliberately misinform jurors about their instructions when they not only do not mention the right of jury nullification, but also ban discussion of it outside of their courtroom?

        if that is an issue, it is for the defense lawyer to bring up on appeal. See, it's the amazing thing about the legal system in the US, any error by the judge is reason for a new trial.

        If you really think the legal system is broken, move somewhere that doesn't have a functional system and find out what it's really like.

         

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          Almost Anonymous (profile), Feb 7th, 2011 @ 10:41am

          Re: Re: Re:

          """if that is an issue, it is for the defense lawyer to bring up on appeal."""

          That's just retarded. State the proper instructions up front. Don't lie. Issue solved. Also, you and I both know that no lawyer will EVER win an appeal with the defense of "the judge neglected to tell the jury that they could nullify the law." Give me a break.

          """If you really think the legal system is broken, move somewhere that doesn't have a functional system and find out what it's really like."""

          Ahh, the old love it or leave it line. Hey buddy, fuck you. I love my country, I just deplore the sorry state of affairs we're in. I'm embarrassed about our reaction to youknowwholeaks. I'm ashamed of our ultra-partisan representatives. But I still hold out hope that things can get better. I suggest you think twice before telling someone to leave.

           

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          Mark, Feb 7th, 2011 @ 12:59pm

          Re: Re: Re:

          Considering the concept of Jury Nullification and notifcation to Jurrors has gone all the way to the SCOTUS, and the ruling was that it does not need to be mentioned or even acknowledged, shoots that completely in the water (sorry, don't know the actual case, but have read it previously)

           

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            Rekrul, Feb 7th, 2011 @ 4:44pm

            Re: Re: Re: Re:

            Considering the concept of Jury Nullification and notifcation to Jurrors has gone all the way to the SCOTUS, and the ruling was that it does not need to be mentioned or even acknowledged, shoots that completely in the water (sorry, don't know the actual case, but have read it previously)

            Did the ruling only say that it didn't have to be acknowledged, or did it blatantly state that judges can actively prevent a jury from knowing about it?

             

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    Gabriel Tane (profile), Feb 7th, 2011 @ 10:08am

    Hey Joe...

    Joe, your comments are spread out through a few different threads, so I'm going to start a new one for this...

    You can't toss around insults and derision at other people and expect people to forget just because we're in the comment section of a different story.

    Did you say anything here ( http://www.techdirt.com/articles/20110204/23291412974/judge-bans-handing-factual-pamphlets-to-jurors -raising-first-amendment-issues.shtml#c117 ) to earn RD's ire? No. But elsewhere, you have been so night-and-day abusive that I've wondered if you had a kid brother that has your password or something. I don't condone RD's attack in that particular post because I think we should all rise above those who are abusive and set a good example (and, yes, I know I do this too... I'm trying...), but nor am I surprised.

    If you want people to treat you fairly, then you need to play fair... not just in this article, but all of them. Until then, saying "But I didn't do anything today to deserve ill treatment" is just 5 year old sibling-fighting logic.

     

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      average_joe (profile), Feb 7th, 2011 @ 10:56am

      Re: Hey Joe...

      I've lost my cool in the past in response to the abuse. I'm trying hard not to do the same now. Rather than rag on me, why not point your finger at the abusers who are adding nothing? Wouldn't it be better to promote a productive conversation?

       

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        Gabriel Tane (profile), Feb 7th, 2011 @ 11:21am

        Re: Re: Hey Joe...

        Ok... you're right...

        RD, that was uncalled for in this thread... yes, Joe has been guilty of attacking in the past and was not guilty of doing so in the past. It would impress me to see an apology, but that's between you and Joe.

        Cowardly Anon... no need to pile on man. Not cool.

        Now that I'm done playing Comment Police, let's get back to you...

        I've read back through the rest, and they're all calling you out for crying victim. And they're right to do so. You have, on more than one occasion (but not many, granted) gone completely off the deep end and just straight-out attacked people... doing nothing to forward the discussion, just to make attacks. To do that then, and now cry victim when someone does it to you is hypocrisy. And that's what you're being called out for.

        Don't want to be called out on it? Two choices: either A) avoid being a dick and actually have moral high-ground to yell from, or B) if someone is a dick to you, ignore it. Or be a dick back... just be consistent.

         

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          Gabriel Tane (profile), Feb 7th, 2011 @ 11:23am

          Re: Re: Re: Hey Joe...

          "RD, that was uncalled for in this thread... yes, Joe has been guilty of attacking in the past and was not guilty of doing so in the past."

          That should read:
          "RD, that was uncalled for in this thread... yes, Joe has been guilty of attacking in the past and was not guilty of doing so here.

          My bad.

           

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        Anonymous Coward, Feb 7th, 2011 @ 12:14pm

        Re: Re: Hey Joe...

        Still playing the victim, eh?

         

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    Anonymous Coward, Feb 7th, 2011 @ 10:08am

    Voting with your conscience is what acquitted many people who lynched black people in the 40's. It's also what put many black people to death for crimes with no evidence. Great Idea.

     

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      Almost Anonymous (profile), Feb 7th, 2011 @ 10:29am

      Re:

      Agreed, that's bad. Really bad. But it's also too bad. Not to belittle it, but it comes down to: a group of people abused their power. Gee, who else abuses power on a daily basis? Wall Street? Washington D.C.? Do we throw out the whole system because it was abused?

       

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    Chris in Utah (profile), Feb 7th, 2011 @ 10:14am

    Ah yes.

    One of my favorite articles highlights below

    "If a juror accepts as the law that which the judge states then that juror has accepted the exercise of absolute authority of a government employee and has surrendered a power and right that once was the citizen's safeguard of liberty." (1788) (2 Elliots Debates, 94, Bancroft, History of the Constitution, 267)

    Despite the courts' refusal to inform jurors of their historical veto power, jury nullification in liquor law trials was a major contributing factor in ending alcohol prohibition. (Today in Kentucky jurors often refuse to convict under the marijuana prohibition laws.)

    However, jury veto power is still recognized. In 1972 the D.C. Circuit Court of Appeals held that the trial jury has an "...unreviewable and irreversible power...to acquit in disregard of the instruction on the law given by the trial judge." The pages of history shine upon instances of the jury's exercise of its prerogative to disregard instructions of the judge; for example, acquittals under the fugitive slave law (473F 2dl 113)

    About 18 months ago, armed with a number of pamphlets explaining the importance to each of us in having the courts fully inform juries of their rights, I stood in the Mendocino County Courthouse. I had been talking about this issue, with courthouse visitors when I was "invited" into Judge James Luther's courtroom by two of his bailiffs. Judge Luther, showed me how in general our courts have eroded. I was told to stop talking to my fellow citizens about their constitutional rights. Their right to understand a jury's role in the court procedure. I was told to stop or be arrested for jury tampering.

     

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      Chris in Utah (profile), Feb 7th, 2011 @ 10:22am

      Re: Ah yes.

      This may be a tangent but its relevant when looking ahead. I put more stock in the people building rehab centers for people with abusive habits than the prison system any day of the week. Amsterdam does just fine.

      Also, nobody deserves to have there life ruined because of drugs not controlled by a government body.

      I still regret not telling the cop out my front door arresting a guy for pot with intent to distribute from the neighboring apartment to go arrest a real criminal.

       

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    OldMugwump (profile), Feb 7th, 2011 @ 10:15am

    Anarchy

    Every juror isn't there to impose his or her own version of justice. That's anarchy.

    No, anarchy is when there are no enforceable rules.

    A jury is a mechanism for making it harder for injustice to occur. The jury mechanism has evolved over more than 1000 years because it is a critical part of successful societies. One key function of juries is to refuse to enforce unjust laws. A jury can't impose arbitrary rule on arbitrary people.

    I think you're a troll, Average Joe. I find it hard to believe you mean what you say.

     

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      average_joe (profile), Feb 7th, 2011 @ 11:03am

      Re: Anarchy

      I think you're a troll, Average Joe. I find it hard to believe you mean what you say.

      My views are just more conservative than yours. It doesn't make me a troll. What's funny is that my conservative friends think I'm a hopeless liberal hippie.

       

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        Richard (profile), Feb 7th, 2011 @ 12:20pm

        Re: Re: Anarchy

        Being conservative is one thing - however I think your position lack's logic.

        If juries were there only to decide simple matters of fact and do as they are told about the law then they would be a pointless waste of time and money and we might as well abolish them.

         

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          Anonymous Coward, Feb 7th, 2011 @ 3:50pm

          Re: Re: Re: Anarchy

          "If juries were there only to decide simple matters of fact and do as they are told about the law "

          This is, by far, the overwhelmingly accepted view of the role of juries among people who actually deal with juries.

          And yet, such people still think juries perform a useful service.

          On the contrary, if juries were to impose their own view of what the law is, then judicial and legislative elections would be a pointless waste of time and money and we might as well abolish them.

           

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    Martin Halstead, Feb 7th, 2011 @ 10:22am

    Stick to your subject

    What you refer to as "free speech" is almost certainly grounds for a mistrial, and may constitute jury tampering. It is fundamental to the American system of jury trial that the jury must decide based on the evidence and law presented in court, and only that evidence. The jury is not allowed to make up new laws that it thinks should be in force, nor disregard those that are in force. This principle is a protection for the accused and for the people. It prevents convictions based on community opinion, the personal prejudices of jurors, or past reputation of the accused. A jury takes an oath to apply the law as written to the facts presented. If, as you propose, anyone could hand fliers to a jury stating "facts" about the accused that are not in evidence and asking the jury to consider these 'facts" this entire system collapses. Trial is then not by law and evidence but by innuendo and opinion. The restrictions you complain about protect the freedom of individuals in court proceedings.

    An example:

    Assume you have a previous conviction for stationary rape. Many years later you are sued for copyright violation. would you consider it fair if the copyright holder distributed literature to your jury asking that they "teach this rapist a lesson?" by rendering a big verdict for infringement? If you don't think this should happen, why do you support "free speech" restriction when you want a fair trial, but not when someone else does?

     

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      Chris in Utah (profile), Feb 7th, 2011 @ 10:27am

      Re: Stick to your subject

      Anybody else notice standing in one spot and getting violated = correlation for free speech argument if.

      :S had to point it out.

       

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      Almost Anonymous (profile), Feb 7th, 2011 @ 10:48am

      Re: Stick to your subject

      To the best that I can see, the pamphlets did not discuss particulars of the actual trial itself, but rather discussed juror's rights such as jury nullification. I would agree with you if they were trying to pass around details pertaining directly to the trial. However, since they were not, your "stationary rape" comparison is just apples and oranges.

       

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    Anonymous Coward, Feb 7th, 2011 @ 10:58am

    average_joe ?

    Is average_joe really a lawyer?
    Most of his rants don't seem very lawyerly. I would really really like to know what bar exame he passed.

    However, jjury nullification is not really a constitutional right.

    But even so, a content based restriction on speech must not only serve a compelling state interest, but must also be narrowly tailored employing the least restrictive means.
    Even assuming that preventing the average juror from voting based on sympathy for the defendant, or having his decision swayed by ethical scruples, a harder question is whether preventing the juror from knowing the law is a legitimate state interest.

    Under the double jeopardy clause, an acquittal by the jury is final and doesn't provide the government an extra bit of the apple.

    Would informing the jury about the double jeopardy clause and its moral responsibility be unprotected speech?
    I think that there is a qualitative difference between telling the juror that he may nullify based on his own conscience, and providing truthful and nonmisleading information about
    the settled interpretation of double jeopardy.

     

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      Mike Masnick (profile), Feb 7th, 2011 @ 5:52pm

      Re: average_joe ?

      Is average_joe really a lawyer?
      Most of his rants don't seem very lawyerly. I would really really like to know what bar exame he passed.


      He's said that he's a law student, not yet a lawyer.

       

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        average_joe (profile), Feb 7th, 2011 @ 7:37pm

        Re: Re: average_joe ?

        Is average_joe really a lawyer?
        Most of his rants don't seem very lawyerly. I would really really like to know what bar exame he passed.

        He's said that he's a law student, not yet a lawyer.


        That's right, I'm a lowly law student. Despite what you may have heard, lawyers are people too. :)

         

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          harbingerofdoom (profile), Feb 8th, 2011 @ 9:42am

          Re: Re: Re: average_joe ?

          That's right, I'm a lowly law student. Despite what you may have heard, lawyers are people too. :)

          pfft.... complete filthy lie.

          everyone knows that lawyers are actually manatees in disguise.

           

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    Anonymous Coward, Feb 7th, 2011 @ 11:02am

    average_joe ?

    Is average_joe really a lawyer?
    Most of his rants don't seem very lawyerly. I would really really like to know what bar exame he passed.

    However, jjury nullification is not really a constitutional right.

    But even so, a content based restriction on speech must not only serve a compelling state interest, but must also be narrowly tailored employing the least restrictive means.
    Even assuming that preventing the average juror from voting based on sympathy for the defendant, or having his decision swayed by ethical scruples, a harder question is whether preventing the juror from knowing the law is a legitimate state interest.

    Under the double jeopardy clause, an acquittal by the jury is final and doesn't provide the government an extra bit of the apple.

    Would informing the jury about the double jeopardy clause and its moral responsibility be unprotected speech?
    I think that there is a qualitative difference between telling the juror that he may nullify based on his own conscience, and providing truthful and nonmisleading information about
    the settled interpretation of double jeopardy.

     

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    Jon B. (profile), Feb 7th, 2011 @ 11:06am

    I know I'm late to the party, but I came to disagree with Mike on this one too.

    I agree on that such a group has their freedom of speech and they shouldn't be outright punished, but the judge is well within his power to ban jurors from accepting such information.

    It's almost as if the judge is admitting that they want uninformed jurors who don't know their own rights.


    Jurors are SUPPOSED to be a little uninformed. If facts are kept out of evidence because they were obtained illegally, then it would violate a defendant's rights to have the jury obtain that information outside the courtroom if they're instructed not to do any independent research. Also, it could be the case that facts are kept out of evidence because they're not facts. What information is on the papers? Citations from news media? If the media got something wrong there may be a REASON the judge chose not to let the jury hear it.

    So agreed on the first amendment issue if it really is one, but there are lots of rights involved here.

    Even if the pamphlet just "informs jurors of their rights" without adding any facts, that could be a problem. The judge is supposed to provide instructions to the jury, and those instructions are supposed to be correct and legal. If it's discovered that jurors acted on 'instructions' they received outside the courtroom then that could be just as much a factor on appeal as if the judge had given the jury incorrect instructions.

    So, yeah, it kinda pisses me off that there's a group out there interfering with sitting jurors. Even though they may mean well, it's inevitable that some murderer is going to get a new trial on appeal because of something like this.

     

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      Chris in Utah (profile), Feb 7th, 2011 @ 12:23pm

      Re:

      :Supposed to: is a moral, not to mention subjective argument.

      Informing people of their rights "could" (again moral) be. If blank could blank.

      Inevitable? try again. The article I posted above was from 2009 and he was handing pamplets out 18 months prior and threatended. I impact on murder cases or hearing about nullification of a manslaughter law?

      Yeah, these arguments are becoming inflated with the heinous crime vs moral outrage with a splash of forgetting history.

      Most of the arguments can be nicely summed into explaining why your rights are fairy tails the others are boiled to libertarians' favorite friend... appealing to authority trumps staw mans.

       

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      Rekrul, Feb 7th, 2011 @ 4:57pm

      Re:

      Even if the pamphlet just "informs jurors of their rights" without adding any facts, that could be a problem. The judge is supposed to provide instructions to the jury, and those instructions are supposed to be correct and legal.

      Except that every judge today blatantly LIES to the jury by telling them that they must render a verdict according to the law. This is a lie because even though it is never mentioned to the jury and even though the judge and the prosecutor will do everything in their power to prevent juries from knowing about it, jury nullification is still a valid jury power in the US. A jury has the power to disregard the law if they feel that convicting someone under it would be unjust.

       

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    RD, Feb 7th, 2011 @ 12:43pm

    And finally...

    Well, I sure seem to have stirred up a shit storm in this article. While I probably shouldnt have gone with the FOAD and all that (just frustration that this guy keeps spreading FUD all over and then disdains anyone who calls him on it, all the while going "you just suck Mike's balls" or "I'm a victim!" all the time) and I apologize for jumping the gun with that last bit, I do think I'll sign off for today by pointing one thing out.

    This thread now has over 170 comments. Lots of on-topic points about jury nullification and judicial responsibility, first amendment issues, and a huge discussion about the merits (or lack of) of name-calling, finger pointing, calling people out on their past comments and attitudes, and in general the acceptability and personal responsibility of what you say online.

    I'd say that, overall, the discussion WAS moved forward, and in several areas. Maybe not with the best start, and maybe not in the way people would usually expect, but we sure did DISCUSS a lot today, didnt we?

    Just take a moment to ponder that idea in context.

     

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    Rhiadon (profile), Feb 7th, 2011 @ 12:49pm

    Risks

    It seems like there is a vein running through many of the comments that Jury Nullification runs the risk of nullifying murder laws. While I think this *is* technically a risk, it seems very improbably that a jury of 12 rational human beings would think that laws prohibiting taking the life of another human being are unjust and must be nullified. Same with rape or any other natural crime that possesses a clear victim upon whom harm has been committed.

    Who knows though. I might be able to conceive of a few situation where this could happen involving certain radical sets of people, but what is the probability that 12 of these people would get on the same jury? Probably low?

    From what I understand, FIJA seems to be working to help prevent convictions for crimes that are victimless and therefore unjust. Thinks like prohibition of alcohol and drugs. There goals may be more general than that, but that seems to be the basic direction.

     

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    non average joe, Feb 7th, 2011 @ 12:49pm

    lack of substance

    seriously am i the only one who sees this
    average joe you asked for citation
    he provided citation and since then you have only whined cause he was mean to you hahaha
    are you ever gonna respond with conversation as you called it
    cause all i have seen is bitching

    "In 1972 the D.C. Circuit Court of Appeals held that the trial jury has an "...unreviewable and irreversible power...to acquit in disregard of the instruction on the law given by the trial judge.""

    ok so we do have the power upheld by a appeals court

    ok so we have the power and we have had this debate already and gotten from it

    "in 1670 Chief Justice Sir John Vaughn issued an historically important ruling: that jurors could not be punished for their verdicts. This case is considered a significant milestone in the history of jury nullification."

    ok and we cant be punished for it

    we have the power and cant be punished for it therefor it is an implied right and cannot be interpreted differently
    mr average joe
    i didnt call you any names (i know your sensitive) and i didnt trash you i just want to know are you going to actually conversate in this conversation or continue to "tell mom" but never actually answer the questions/debate

    put more simply i believe the people here have more than illustrated (read my quotes above) that it is an implied right in america that people have the right to juror in line with thier own conscience
    for as one put it "i have to live with my decision not you"


    if the law said to give the death penalty to anyone who jaywalked would you not as a juror on that case feel compelled to ignore the law that instructs you to remove from a person, "their life" based on frivolous law


    the following supercedes all law and therefor is grounds for classifying the subject of our conversation as "an irreversible right"

    That whenever any Form of Government becomes destructive of [protecting life, liberty and the pursuit of happiness--the essential rights], it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness." Our government itself gives us the authority and responsibility, not to question its authority, but to check its ability to deprive us of our own.



    and no i cant knowingly cause for the removal of life liberty or persuit of happiness from any citizen of america without first considering its legal standing with all laws
    not just those outlined by that judge at that time in that case

    doing so would harm my conscience in an irreversible manner
    noone has the right to pick people at random and force them to knowingly act in detriment of their moral belief

     

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      Martin Halstead, Feb 8th, 2011 @ 8:50am

      More case law

      The distinction made by the case law appears to be that,while a jury may nullify, no one (Attorneys, judges, members of the public) may ask or urge a jury to nullify. compare the DC courts view:

      But it is equally possible that the jury was exercising its power of nullification or that other factors were at work. Farina v. United States, 622 A.2d 50, 60 (D.C.1993) (“jury nullification permits jurors to acquit a defendant on the basis of their notions of justice, even if they believe he or she is guilty as a matter of law”); Watts v. United States, 362 A.2d 706, 710 n. 5 (D.C.1976) (“the exercise of a jury's prerogative-in-fact to acquit out of conscience or prejudice is a tolerated ‘anomaly in the rule of law’ ”); United States v. Dougherty, 154 U.S.App.D.C. 76, 95, 473 F.2d 1113, 1132 (1972) (“the existence of an unreviewable and unreversible power in the jury, to acquit in disregard of the instructions on the law given by the trial judge, has for many years co-existed with legal practice and precedent”).

      with that of Nebraska in State v. Green 238 Neb. 492, 507, 471 N.W.2d 413, 425 (Neb.,1991)

      In that case, we held that although a jury may acquit an accused even if its verdict is contrary to the law and the evidence, the defendant is not entitled to have the jury instructed concerning the power of jury nullification. Accord, United States v. Drefke, 707 F.2d 978 (8th Cir.1983), cert. denied 464 U.S. 942, 104 S.Ct. 359, 78 L.Ed.2d 321; United States v. Moylan, 417 F.2d 1002 (4th Cir.1969) (exhaustive discussion of doctrine of jury nullification), cert. denied 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970).

       

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    non average joe, Feb 7th, 2011 @ 1:00pm

    lack of substance

    the only reason we are able to take these rights from people in the first place is to protect life and for providing safety therof so it is each jurors responsibility to examine
    at least in my interpretation (interpretation is a big part of todays law)

    "if the punishment of the law more dangerously removes safety from the defendant or the crime of the defendant more dangerously removes safety from the public

     

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    non average joe, Feb 7th, 2011 @ 1:13pm

    lack of substance

    the law agents need to work harder to convince others they are useful and productive and deserve the power invested in them by the people.

    well put after all they are our government we own them
    but at the same time we are not their people they do not own us they work for us providing services to american people

    shit if someone overcharged me for fixing my roof and it still leaked i would sue to get my money back

     

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    colorado, Feb 7th, 2011 @ 1:20pm

    leaky roof

    "OVERCHARGED ME FOR FIXING MY ROOF AND IT STILL LEAKS"
    sounds like the war on drugs to me LOL

     

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    Fentex, Feb 7th, 2011 @ 2:07pm


    Jurors are not supposed to "vote with their conscience," and it is incorrect to state that that is their right. They are supposed to vote based on the facts in evidence and the law. To promote otherwise would certainly "harm the integrity of the jury system." That's all it would do. Pretty standard stuff.


    This is mistaken, and I expect it's exactly the sort of error the pamphlets in question are addressing.

    Many poeple don't know, and authorities would like them ot be unaware of, a juries responsibility ot judge not just the facts of a case but the law under which it is tried.

    A jury is not just a group of people picked to decide the facts and therefore guilt or innocence. They are also a representative selection of citizens who are expected to decide if the law being used is just and if it should be enforced on their behalf.

    Because of this and the widespread belief that the 'War On Drugs' is stupid law it has become a common tactic for defendants to try and tell juries they can agree that a defendant broke drug laws but also not convict defendants on the basis of the law being an ass.

    And because authority fears citizens resisting the imposition of laws like this authority is increasingly trying to hide jurys own authority from them.

    It is now illegal in several U.S states for officers of the court to tell juries they can nullify laws.

    Authority would like, but hasn't yet found the courage and way to remove this authority from juries.

    Knowing that juries were citizens final word on the authority of the state to impose it's law and will (beside the individual facts of a case) is what lead Thomas Jefferson to say;

    "I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution."

     

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    Anonymous Coward, Feb 7th, 2011 @ 2:52pm

    I'm probably not contributing anything new, since there's already almost 200 posts on this article, but assuming that a
    the "Fully Informed Jury Association (FIJA)" is all about "fully informing" juries, simply based on its name, is hilariously naive.

    I mean, that has to be satire, right?

     

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    Darren, Feb 7th, 2011 @ 3:00pm

    The Judicial Crackdown on Jury Rights Activists in Florida

     

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    Anonymous Coward, Feb 7th, 2011 @ 3:18pm

    Informed Jury Convicted Mike

    Remember, it was an "informed jury" that convicted Mike of rape and murder.
    http://www.techdirt.com/articles/20100204/0125048040.shtml#c1686

     

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    ChimpBush McHitlerBurton, Feb 7th, 2011 @ 4:19pm

    Suppose...

    Ok, I don't know why this jury nullification thing is so hard for the trolls and the conservatives to grok. So, let's use a little analogy:

    Imagine that the US Government pushed through a law that provided the death penalty for petty theft, let's say a loaf of bread.

    So, let's also say that we head into a depression, and there is suffering and hunger everywhere. You are called into jury duty, and the case is the State vs. a young mother of four who stole a loaf of bread to feed these starving children.

    Now, you are instructed by the court that it is not your job to sympathize with the defendant; your job is simply to hear the testimony of the arresting officer, and determine if the defendant broke the law.

    Knowing that she would be put to death for this crime, which you are certain she committed... would you find for the prosecution, or for the defendant?

    If you would find for the defendant, you are representative of the kind of person that jury nullification supports: Those who believe that a tyrannical government, via their court system, can not pass laws that are unduly harsh. Well, they can, but it won't do any good if they can't convict people...

    (One could argue that if you don't like the law, get it changed by going through proper channels. Our predecessors realized that when dealing with tyranny, this might not be a viable option, so they allowed for justice to be meted out at the jury level, to keep kangaroo courts in check.)

    If you would find for the prosecution, you are a heartless moron, and should be charged under penalty of death for the crimes of gross stupidity and abject dispatriotism. (yeah, I made up that word; sue me)

    Let's just hope your jury isn't made up of people like you.

    CBMHB

     

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      average_joe (profile), Feb 7th, 2011 @ 5:02pm

      Re: Suppose...

      Interesting, though extreme example. The death penalty for petty theft would clearly violate the 8th Amendment. Plus, I think they have to give the jury the option of a lesser included, non-capital offense to vote on, or else that violates Due Process under the Fifth Amendment.

       

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        ChimpBush McHitlerBurton, Feb 8th, 2011 @ 12:01pm

        Re: Re: Suppose...

        Yes, an extreme example, simply to make a point. As far as the 8th goes, of course you're right, but that wasn't my point. I could have easily used the mandatory minimum sentencing that is meted out to 19 year-old black kids who get caught with "crack" cocaine instead of "regular" cocaine: What is it, 30 years extra? I would call that cruel and unusual, but there are young black men in prison right now under those rules. The 8th didn't protect them from that. A educated jury could have.

        The point is this: the word "right" can be used in several different ways. I think your use is very strict and narrow. There are rights in the Constitution, and there are "natural" rights that we as a culture hold to be just as sacred. You may choose to split hairs and pick the semantic alternative of "power", but it makes little or no difference to this discussion: Those things that we do, that make up the moral fabric of our society, whether or not the Government chooses to recognize them, are rights for all intents and purposes. Governments do not "give" rights to anyone, via a written Constitution or otherwise. Rights are natural, unalienable, and possessed without permission from any Government.

        A Government may only "recognize" those rights, or not recognize them and try to alienate the people from those rights. If the Government chooses to alienate and prevent the people from exercising their rights, we have a few options at our disposal. One is to nullify the Government's prosecutions so that they are essentially moot. Another is to revolt, which we did a little over 200 years ago.

        Remember?

        I'm sure King George had not granted us the "right" to start calling our own shots, but we didn't need him to do so. We had the right to do as we damned pleased. Yes, it was a "right". It wasn't written down or granted by anyone, yet we had it nonetheless. Sure, it was a "power" as well, but if anything, it was a right that we had the power to enforce.

        CBMHB

         

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      Anonymous Coward, Feb 7th, 2011 @ 5:39pm

      Re: Suppose...

      Yes, clearly if someone disagrees with you, they must be unable to grok the subject matter, and must be a "troll" or a conservative too!

       

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        ChimpBush McHitlerBurton, Feb 8th, 2011 @ 11:25am

        Re: Re: Suppose...

        Ha, you spelled "tool" wrong. You put an exclamation mark instead of the "L".

        ;-)

         

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    Rekrul, Feb 7th, 2011 @ 5:06pm

    What's the surest, quickest way to get out of jury duty? Mention jury nullification to the judge and you'll be out of the courthouse so fast that you'll get whiplash.

     

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    average_joe (profile), Feb 7th, 2011 @ 6:26pm

    Here's a little caselaw from the Second Circuit. It's a really long quote, but I think it's very instructive on the issue of whether there's a right to jury nullification:

    We take this occasion to restate some basic principles regarding the character of our jury system. Nullification is, by definition, a violation of a juror's oath to apply the law as instructed by the court-in the words of the standard oath administered to jurors in the federal courts, to “render a true verdict according to the law and the evidence.” Federal Judicial Center, Benchbook for U.S. District Court Judges 225 (4th ed. 1996) (emphasis supplied) 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. Accordingly, we conclude that a juror who intends to nullify the applicable law is no less subject to dismissal than is a juror who disregards the court's instructions due to an event or relationship that renders him biased or otherwise unable to render a fair and impartial verdict.

    ***

    More generally, the very institution of trial by jury in a criminal case, as Judge Learned Hand observed, “introduces a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions.” U.S. ex rel. McCann v. Adams, 126 F.2d 774, 776 (2d Cir.), rev'd on other grounds, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942). This is so because, as Judge Hand explained, “[t]he individual can forfeit his liberty-to say nothing of his life-only at the hands of those who, unlike any official, are in no wise accountable, directly or indirectly, for what they do, and who at once separate and melt anonymously in the community from which they came.... [S]ince if they acquit their verdict is final, no one is likely to suffer of whose conduct they do not morally disapprove....” Id. at 775-76.

    ***

    But as the quotation from the Supreme Court's opinion in Standefer indicates, in language originally employed by Judge Learned Hand, the power of juries to “nullify” or exercise a power of lenity is just that-a power; it is by no means a right or something that a judge should encourage or permit if it is within his authority to prevent. It is true that nullification has a long history in the Anglo-American legal system, see Dougherty, 473 F.2d at 1130-33, and that the federal courts have long noted the de facto power of a jury to render general verdicts “in the teeth of both law and facts,” Horning v. District of Columbia, 254 U.S. 135, 138, 41 S.Ct. 53, 54, 65 L.Ed. 185 (1920); see, e.g., United States v. Trujillo, 714 F.2d 102, 105-06 (11th Cir.1983). However, at least since the Supreme Court's decision in Sparf v. United States, 156 U.S. 51, 102 (1895) (holding that, while juries are finders of fact, “it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them”), courts have consistently recognized that jurors have no right to nullify. See Gordan, supra, at 272, 277 (noting that, with Sparf, the Supreme Court “fixed the law where Lord Mansfield had left it” in King v. Shipley (“The Dean of St. Asaph's Case”), 4 Doug. 73 (K.B. 1784), in which Mansfield had written that jurors have the power, but not the right, to decide the law); Howe, supra, at 589 (referring to Sparf as “the Supreme Court's final and authoritative denial of the [jury's] right” to serve as judges of the law); see, e.g., United States v. Kerley, 838 F.2d 932, 938 (7th Cir.1988) (“[J]ury nullification is just a power, not also a right ....”). As a panel of the Court of Appeals for the District of Columbia Circuit-composed of Chief Judge Spottswood W. Robinson, III, Judge George E. MacKinnon, and then-Judge Ruth Bader Ginsburg-explained:

    A jury has no more “right” to find a “guilty” defendant “not guilty” than it has to find a “not guilty” defendant guilty, and the fact that the former cannot be corrected by a court, while the latter can be, does not create a right out of the power to misapply the law. Such verdicts are lawless, *616 a denial of due process and constitute an exercise of erroneously seized power.

    United States v. Washington, 705 F.2d 489, 494 (D.C.Cir.1983) (per curiam) (emphasis in original). Indeed, as we noted above, the exercise of this de facto power is a violation of a juror's sworn duty to “apply the law as interpreted by the court.” United States v. Boardman, 419 F.2d 110, 116 (1st Cir.1969), cert. denied, 397 U.S. 991, 90 S.Ct. 1124, 25 L.Ed.2d 398 (1970).

    ***

    Inasmuch as no juror has a right to engage in nullification-and, on the contrary, it is a violation of a juror's sworn duty to follow the law as instructed by the court-trial courts have the duty to forestall or prevent such conduct, whether by firm instruction or admonition or, where it does not interfere with guaranteed rights or the need to protect the secrecy of jury deliberations, see infra Section II.C, by dismissal of an offending juror from the venire or the jury. If it is true that the jury's “prerogative of lenity,” Dougherty, 473 F.2d at 1133, introduces “a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions,” Adams, 126 F.2d at 776, then, as part and parcel of the system of checks and balances embedded in the very structure of the American criminal trial, there is a countervailing duty and authority of the judge to assure that jurors follow the law. Although nullification may sometimes succeed-because, among other things, it does not come to the attention of a presiding judge before the completion of a jury's work, and jurors are not answerable for nullification after the verdict has been reached-it would be a dereliction of duty for a judge to remain indifferent to reports that a juror is intent on violating his oath. This is true regardless of the juror's motivation for “nullification,” including race, ethnicity or similar considerations. A federal judge, whose own oath of office requires the judge to “faithfully and impartially discharge and perform all the duties incumbent upon [the judge] ... under the Constitution and laws of the United States,” 28 U.S.C. § 453 (1994), may not ignore colorable claims that a juror is acting on the basis of such improper considerations.

    Accordingly, every day in courtrooms across the length and breadth of this country, jurors are dismissed from the venire “for cause” precisely because they are unwilling or unable to follow the applicable law.10 Indeed, *617 one of the principal purposes of voir dire is to ensure that the jurors ultimately selected for service are unbiased and willing and able to apply the law as instructed by the court to the evidence presented by the parties.

    So also, a presiding judge possesses both the responsibility and the authority to dismiss a juror whose refusal or unwillingness to follow the applicable law becomes known to the judge during the course of trial. Rule 24(c) of the Federal Rules of Criminal Procedure provides for the substitution of alternates for “jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties.” Surely a juror is “unable or disqualified,” for purposes of this rule, who is intent on nullifying the applicable law and thereby violating his oath to “render a true verdict according to the law and the evidence.”

    Similarly, we conclude that a juror who is determined to ignore his duty, who refuses to follow the court's instructions on the law and who thus threatens to “undermine[ ] the impartial determination of justice based on law,” Krzyske, 836 F.2d at 1021, is subject to dismissal during the course of deliberations under Rule 23(b). This conclusion reinforces the court's inherent authority to conduct inquiries in response to reports of improper juror conduct and to determine whether a juror is unwilling to carry out his duties faithfully and impartially. The rule we adopt applies with equal force whether the juror's refusal to follow the court's instructions results from a desire to “nullify” the applicable law or, for example, as in the cases described above, see supra pp. 613-14, from a perceived physical threat or from a relationship with one of the parties.

    U.S. v. Thomas, 116 F.3d 606 (2d Cir. 1997).

     

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      Anonymous Coward, Feb 7th, 2011 @ 7:40pm

      Re:

      Are judges legislating now?
      Have they the power to change the law?

      There are 2 bodies only who can decide what is a right and what is not and that is the legislative and the people.

       

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        Anonymous Coward, Feb 7th, 2011 @ 10:37pm

        Re: Re:

        Um, the legislature is the representative body of the people. No individual person has the right to decide what the law is. That is dictatorship.

         

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      Anonymous Coward, Feb 7th, 2011 @ 10:39pm

      Re:

      Thanks for this. Good to see a little actual law, in addition to what everyone *says* is the truth (cuz they read it on the internet and liked the sound of it).

       

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      btr1701 (profile), Feb 8th, 2011 @ 9:34am

      Re: Case Law

      Nothing in that case suggests that judges have the extraordinary power of muzzling the general public from speaking about the concept of jury nullification, nor does it suggests that if a citizen does so, they're guilty of "jury tampering".

       

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        average_joe (profile), Feb 8th, 2011 @ 9:54am

        Re: Re: Case Law

        Nothing in that case suggests that judges have the extraordinary power of muzzling the general public from speaking about the concept of jury nullification, nor does it suggests that if a citizen does so, they're guilty of "jury tampering".

        Who said it did? That case makes clear there is no right to jury nullification. It's not a jury tampering case, so I'm not sure what your criticism is. The jury tampering case I quoted in the Turney case, cited below.

         

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          btr1701 (profile), Feb 8th, 2011 @ 10:33am

          Re: Re: Re: Case Law

          > It's not a jury tampering case, so I'm not sure
          > what your criticism is.

          LOL! *You're* the one who has turned this into a jury tampering issue by repeatedly claiming that informing people about the lawful concept of jury nullificiation is "jury tampering".

           

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            average_joe (profile), Feb 8th, 2011 @ 10:51am

            Re: Re: Re: Re: Case Law

            LOL! *You're* the one who has turned this into a jury tampering issue by repeatedly claiming that informing people about the lawful concept of jury nullificiation is "jury tampering".

            You pointed to the case above, specifically U.S. v. Thomas, then commented that it said nothing of jury tampering. I merely pointed out that it is not a jury tampering case, so the fact that it doesn't mention jury tampering is wholly unremarkable.

            I am not the one who started the jury tampering idea--the judge who issued the order that is the very basis of this article specifically gave his order because of jury tampering. The reason the judge won't allow FIJA to accost prospective jurors outside the courthouse is because he says it's jury tampering. Jury tampering is very much the subject of this article to which we are commenting.

            You seriously appear to be trying to argue about anything and everything with me, but your arguments just aren't hitting the mark. I don't get it.

            And, one last thing, I have provided indisputable proof that in the U.S. jury nullification is not "lawful." I cannot fathom why you insist it is so.

             

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              btr1701 (profile), Feb 8th, 2011 @ 12:41pm

              Re: Re: Re: Re: Re: Case Law

              > I have provided indisputable proof that in the
              > U.S. jury nullification is not "lawful."

              No, you haven't. You just keep insisting that it's not a right and bizarrely arguing that people can only legally do those things which are classified as rights.

              Jury nullification certainly is not unlawful or illegal. No one can be punished ro sanctioned for engaging in it, so your continued fixation on this point is solely a matter of pure sophistry.

               

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                average_joe (profile), Feb 8th, 2011 @ 12:54pm

                Re: Re: Re: Re: Re: Re: Case Law

                No, you haven't. You just keep insisting that it's not a right and bizarrely arguing that people can only legally do those things which are classified as rights.

                Jury nullification certainly is not unlawful or illegal. No one can be punished ro sanctioned for engaging in it, so your continued fixation on this point is solely a matter of pure sophistry.


                You think that somehow it's legal to do something which you have no right to do. At this point, you appear beyond reason to me.

                 

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                  Anonymous Coward, Feb 8th, 2011 @ 1:48pm

                  Re: Re: Re: Re: Re: Re: Re: Case Law

                  Your citation says nothing about Jury Nullification being illegal, only that it can get you kicked out of court.

                   

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                    average_joe (profile), Feb 9th, 2011 @ 10:12am

                    Re: Re: Re: Re: Re: Re: Re: Re: Case Law

                    Your citation says nothing about Jury Nullification being illegal, only that it can get you kicked out of court.

                    If a juror attempting to nullify can get that juror kicked off the jury, that should be your sign that that juror is not exercising any right. If nullification was a right, that juror could not be removed for exercising that right.

                    Just because that juror is not arrested for the attempted nullification doesn't make it legal. To not arrest such a juror is simply a public policy position, not an indication that it's legal.

                     

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                      Anonymous Coward, Feb 10th, 2011 @ 6:15pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Case Law

                      And because a black man is turned away from the polls, that should be a sign that voting isn't a right. I think I see where you're going with this!

                      Seriously, rights have been denied for as long (probably longer) than they have been recognized. You can't argue that because a right has been trampled that it does not exist!

                       

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                      Anonymous Coward, Feb 10th, 2011 @ 6:17pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Case Law

                      Also, the legality of it should be a very simple issue. If it's illegal, just cite the relevant law so that everyone can look at it and see that you're right. End of discussion.

                      Would that all the issues involved here were so simple.

                       

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    Karl (profile), Feb 7th, 2011 @ 6:30pm

    Legality of "jury nullification"

    In case anyone is curious about what the law actually says about jury nullification:

    It is settled that juries do have this right. However, it is also settled that there is no requirement by the court to instruct juries on this right. In fact, the court has the right to prevent counsel from even mentioning jury nullification.

    The theory, I guess, is that this is a kind of "balance" between the right of juries to nullify bad laws, and the anarchy that would result if juries could just disregard the law altogether.

    The most relevant case is U.S. v. Moylan:
    We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision. [...]

    But upon principle, where the matter is not controlled by express constitutional or statutory provisions, it cannot be regarded as the right of counsel to dispute before the jury the law as declared by the court. We must hold firmly to the doctrine that in the courts of the United States it is the duty of juries in criminal cases to take the law from the court, and apply that law to the facts as they find them to be from the evidence.

    But the judge's right to prevent knowledge about nullification, ends at the doors to the courtroom. Juries absolutely have the right of nullification (even if they can be prevented from knowing about it in court). So the notion that this is a "compelling interest," which justifies stepping all over the First Amendment, is pure bunkum.

     

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      Karl (profile), Feb 7th, 2011 @ 6:33pm

      Re: Legality of "jury nullification"

      I should also mention: All of the case law from the past 100 years has come from circuit courts, or state Supreme Courts. As far as I know, the U.S. Supreme Court has yet to weigh in on the matter.

      So, it's quite a contentious issue.

       

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        average_joe (profile), Feb 7th, 2011 @ 7:15pm

        Re: Re: Legality of "jury nullification"

        I should also mention: All of the case law from the past 100 years has come from circuit courts, or state Supreme Courts. As far as I know, the U.S. Supreme Court has yet to weigh in on the matter.

        So, it's quite a contentious issue.


        Is there a right to nullification in any state or circuit? If not, how is it "contentious"?

         

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        average_joe (profile), Feb 7th, 2011 @ 8:00pm

        Re: Re: Legality of "jury nullification"

        I should also mention: All of the case law from the past 100 years has come from circuit courts, or state Supreme Courts. As far as I know, the U.S. Supreme Court has yet to weigh in on the matter. So, it's quite a contentious issue.

        As to your claim that the Supreme Court has not weighed in on the matter, that's not correct either. I've found Supreme Court language that unequivocally shows there is no right to nullification.

        As the Court said in Dunn v. U.S., 284 U.S. 390 (1932):
        The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.
        In other words, the U.S. Supreme Court explicitly says that there is no right for a jury to exercise its power of nullification.

        The Court repeated the same in Standefer v. U.S., 447 U.S. 10 (1980):
        The absence of these remedial procedures in criminal cases permits juries to acquit out of compassion or compromise or because of “their assumption of a power which they had no right to exercise, but to which they were disposed through lenity."
        Do not misconstrue the use of the word "permit" in that quote. In context, the Court is pointing out that nothing can stop it, not that it is a right per se.

        Again, you shouldn't rely on wikipedia to make your legal arguments.

         

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          Karl (profile), Feb 7th, 2011 @ 9:24pm

          Re: Re: Re: Legality of "jury nullification"

          Hey, Joe.

          I guess if I inspire five or six multi-paragraph comments from you per hour, I must have struck a nerve somewhere.

          Perhaps I should not have said "right." Juries have the power of nullification; no court can stop the jury from doing so; and there is no punishment for a jury that does so. Jury nullification causes no exception to "double jeopardy," and cannot be grounds for appeal.

          As the Court said in Dunn v. U.S., 284 U.S. 390 (1932)

          Thanks for pointing out these cases. I hadn't read them before, but I did just now.

          That quote was actually from Steckler v. U.S. It was quoted in the Dunn and Standefer cases. The end of Steckler reads:
          That the conviction may have been the result of some compromise is, of course, possible; but to consider so is to consider too curiously, unless all verdicts are to be upset on speculation.

          In other words, even when juries assume "a power which they had no right to exercise," the verdict stands.

          Dunn also compares this to Horning v. D.C. That case includes this quote:
          The judge cannot direct a verdict, it is true, and the jury has the power to bring in a verdict in the teeth of both law and facts.

          That quote has generally been interpreted as an acceptance of jury nullification, though not an endorsement.

          Of course, that case also affirmed that a judge could legally instruct a jury that a guilty verdict was the only correct verdict. So, there you go.

          A case which acts as a pretty good summary of the whole mess is U.S. v. Desmond:
          As a general proposition, special verdicts are generally disfavored in criminal cases, but there is no per se rule against them. We so held in cases within the past two years. Some of the antipathy toward special verdicts in criminal trials has its roots in the doctrine of "jury nullification," the power of a jury "to bring in a verdict in the teeth of both law and facts," a "technical right, if it can be called so, to decide against the law and the facts...."

          Jury nullification has a unique place in the law and has been the subject of spirited debate for hundreds of years in both English and American law. In the famous case of Sparf and Hansen v. United States, the justices conducted an exhaustive review of the authorities and the majority concluded that, although the trial judge may not direct a verdict of guilty, it is "the duty of the court to expound the law and that of the jury to apply the law as thus declared to the facts as ascertained by them."

          Even though Sparf resolved the controversy as to the duty of jurors in federal criminal trials, the power to acquit in derogation of that obligation remained - because there could be no punishment for such conduct. Thus, Justice Holmes' comment in Horning that the jury could decide a case in the "teeth of both law and facts," made 25 years after the Sparf opinion, was simply a realistic appraisal of this still viable power. [...]

          It is also true that the courts have adopted a rather ambiguous attitude toward jury nullification, or "jury lawlessness" as Dean Pound termed it. Respect for the concept and its benefits is reflected in opinions such as Duncan v. Louisiana, where it is observed that "(i)f the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it." In United States ex rel McCann v. Adams, Judge Learned Hand spoke of the jury's verdict as introducing "a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions."

          Yet, when defendants have asked that jurors be instructed on their power of nullification, the requests have been denied. [Citations omitted.]

          That about sums it up.

          Again, you shouldn't rely on wikipedia to make your legal arguments.

          I go to Wikipedia to get some initial cases, but then I look them up directly. I did so in this case as well. You'll notice that my quote was more extensive than Wikipedia's, which is because I got it from the text of the ruling itself.

           

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            velox (profile), Feb 8th, 2011 @ 8:17am

            Re: Re: Re: Re: Legality of "jury nullification"

            Dunn v. US (1932) was a prohibition enforcement case. This was one of many cases of jury nullification which were instrumental provoking the overturn of prohibition. Lawmakers were forced to act when it became apparent that the general public simply did not accept the law, and would not enforce a law they did not believe in.

             

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      average_joe (profile), Feb 7th, 2011 @ 7:27pm

      Re: Legality of "jury nullification"

      In case anyone is curious about what the law actually says about jury nullification: It is settled that juries do have this right. However, it is also settled that there is no requirement by the court to instruct juries on this right. In fact, the court has the right to prevent counsel from even mentioning jury nullification.

      It is NOT settled that juries have this right. On the contrary, it's settled that they don't. If there was such a right, then the court wouldn't be able to withhold that fact from a jury. Can you find one court that says jurors have this "right"?

      The theory, I guess, is that this is a kind of "balance" between the right of juries to nullify bad laws, and the anarchy that would result if juries could just disregard the law altogether.

      There is no such right, so that's not what's being balanced.

      The most relevant case is U.S. v. Moylan: ***

      You are misreading the court in Moylan. They don't say that there is a "right" to jury nullification, they only say that there is the "power." A power is not a right. Notice how in the quote you provided, in the first paragraph the court only speaks of "power" and not "right." The wikipedia page you're quoting is incorrect.

      But the judge's right to prevent knowledge about nullification, ends at the doors to the courtroom. Juries absolutely have the right of nullification (even if they can be prevented from knowing about it in court). So the notion that this is a "compelling interest," which justifies stepping all over the First Amendment, is pure bunkum.

      It is precisely because there is a compelling interest that this carries past the courtroom's doors. This compelling interest is why the judge's order does not violate the First Amendment.

       

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    average_joe (profile), Feb 7th, 2011 @ 6:53pm

    More importantly for the subject of this article, there is no right for jury nullification in the Ninth Circuit (the judge and courthouse in this article are in the Ninth Circuit). So anyone standing in front of the courthouse saying otherwise is incorrect. As explained by the court:
    The jury's function is to find the facts and to decide whether, on those facts, the defendant is guilty of the crime charged.” Shannon v. United States, 512 U.S. 573, 579, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994). The jury is not to consider the consequences of its verdict, and should be instructed to reach its verdict without regard to what sentence might be imposed. Id. “Jury nullification” occurs when the jury acquits the defendant even though the government has proven its case beyond a reasonable doubt. United States v. Powell, 955 F.2d 1206, 1212-13 (9th Cir.1991). Defendants are not entitled to jury nullification instructions; “anarchy would result from instructing the jury that it may ignore the requirements of the law.” United States v. Powell, 955 F.2d at 1213 (citation omitted). Although the jury has the power of nullification, the jury has no right to engage in nullification. Standefer v. United States, 447 U.S. 10, 22, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980).
    Patterson v. Runnels, 288 F. Supp. 2d 1092, 1099-100 (C.D. Cal. 2003).

     

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      Anonymous Coward, Feb 7th, 2011 @ 7:36pm

      Re:

      That is not what it says there.

      It says jury nullification is legal, but the jury is not entitled to jury nullification instructions meaning they must know they have that right before hand since the courts don't like that law and are less likely to have it mentioned even going so far as to try and actively prevent it.

      What kind of student of the law make such a gross misrepresentation?

       

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        average_joe (profile), Feb 7th, 2011 @ 8:14pm

        Re: Re:

        That is not what it says there.

        It says jury nullification is legal, but the jury is not entitled to jury nullification instructions meaning they must know they have that right before hand since the courts don't like that law and are less likely to have it mentioned even going so far as to try and actively prevent it.


        It says: "Although the jury has the power of nullification, the jury has no right to engage in nullification." If you have no right to do something, but you do it anyway, then are you not doing something legal. In other words, jury nullification is not legal.

        What kind of student of the law make such a gross misrepresentation?

        I'm the kind of law student that gets very good marks on exams and that judges entrust to do research for them. I made no "gross misrepresentation" that I can see. If I'm wrong, I'll gladly admit it, but I don't see it.

         

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          Karl (profile), Feb 7th, 2011 @ 9:45pm

          Re: Re: Re:

          If you have no right to do something, but you do it anyway, then are you not doing something legal.

          Just a nitpick, but this is not at all true.

          You are only doing something illegal if there is a law against something, and you are breaking that law. If no such law exists (as is the case here), they're not doing anything not legal.

          By default, humans have a legal right to do anything they have the ability to do. Laws take away some of those rights. That's why laws have to be written so carefully - they are, by definition, an infringement on the public's rights, and thus must be justified.

          Most laws are justified, of course. Nobody here wants to live in a society where murder is legal.

          But the idea that an activity must be explicitly approved, or else you're breaking the law, is simply not correct.

           

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            average_joe (profile), Feb 7th, 2011 @ 9:52pm

            Re: Re: Re: Re:

            Can you name something I can do legally but that I don't have the right to do? Seems like a non sequitur to me.

             

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              Anonymous Coward, Feb 7th, 2011 @ 10:51pm

              Re: Re: Re: Re: Re:

              It's a unique case, since there is no punishment for nullification, but there *is* law authorizing courts to try to prevent it from happening.

              Does that make it "illegal?" I think that's a vague term to begin with, so I have no opinion on the matter.

               

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              Karl (profile), Feb 7th, 2011 @ 11:01pm

              Re: Re: Re: Re: Re:

              Can you name something I can do legally but that I don't have the right to do?

              Nowhere in the law is it explicitly stated that you have a right to breathe. So, legally speaking, you "don't have the right" to breathe. That doesn't mean breathing is unlawful.

              Or, let's take plagiarism as an example. Unless it's also copyright infringement, plagiarism is not illegal in any way. You could take a public domain work, publish it under your own name, and there would be no legal consequences. But many people would think you "don't have the right" to do that.

              It's similar with jury nullification. Judges may opine that juries don't have that right; but unless that right is removed by law, they're not doing anything unlawful.

               

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                average_joe (profile), Feb 8th, 2011 @ 6:58am

                Re: Re: Re: Re: Re: Re:

                Nowhere in the law is it explicitly stated that you have a right to breathe. So, legally speaking, you "don't have the right" to breathe. That doesn't mean breathing is unlawful.

                You don't have a right to breath? So I can legally take away all your oxygen? I wouldn't be violating your rights, right? You don't have a right to live?

                Or, let's take plagiarism as an example. Unless it's also copyright infringement, plagiarism is not illegal in any way. You could take a public domain work, publish it under your own name, and there would be no legal consequences. But many people would think you "don't have the right" to do that.

                I don't follow. If you publish a work without any possible legal consequences, then you are exercising your right to publish. That's the First Amendment, no?

                It's similar with jury nullification. Judges may opine that juries don't have that right; but unless that right is removed by law, they're not doing anything unlawful.

                Judges aren't just opining that juries don't have that right, they are stating the law. If a juror's intent to nullify is known, that juror can be removed for cause. If a person is convicted despite the evidence, that person can get the verdict overturned on appeal.

                I'm just not following you here.

                 

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                  Karl (profile), Feb 8th, 2011 @ 7:27am

                  Re: Re: Re: Re: Re: Re: Re:

                  You don't have a right to breath? So I can legally take away all your oxygen?

                  This was my point: no, you do not. I have that right because it is a natural right. Natural rights do not depend upon the law; you do not need a law to have them.

                  My right to breathe is not "granted" by law. My right to breathe is protected by law, in this case by laws against murder.

                  If you publish a work without any possible legal consequences, then you are exercising your right to publish.

                  Again, my point: you don't need a (legal) right to publish. The reason free speech is protected is not because the First Amendment "grants" that right. It is because speech is a natural right.

                  In fact, the First Amendment does not grant this right. It explicitly disallows the government from taking away the natural right that already exists. It's not "the people shall have the right," it's "the government shall make no law." If you want to think of it this way, you have the "power" to publish, in the words of Moylan.

                  Now, all of this is very nit-picky, as I said. But it's a crucial distinction when it comes to unlawful acts. It matters not one whit whether anyone in law enforcement, the courts, or the government at large believes something is unlawful. It is unlawful only when it breaks a law. Hence, when you say this:

                  Judges aren't just opining that juries don't have that right, they are stating the law.

                  ...you are wrong, because there is no law against nullification. A judge cannot "state" a law that doesn't exist.

                  So legally speaking, jury nullification is in the same category as plagiarism. It is frowned upon; it is prevented wherever possible. But it is not illegal.

                  And some judges, as quoted in U.S. v. Desmond above, think it's a vital part of democracy. They may be in the minority, but its undesirability in all cases is not universally agreed upon by any means. That's what I meant by "contentious."

                  ...And now, I'm late for class. I'm a sucker, I guess.

                   

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                    average_joe (profile), Feb 8th, 2011 @ 7:44am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    I still don't get these natural right arguments you make. If I tried to take away your ability to breath, you'd have recourse in the courts whether it's a tort (trespass, battery, unsafe work condition, etc.) or a crime (attempted murder, battery, etc.). You would go to court with a theory of how I violated your right, and it wouldn't be your "natural" right.

                    Same with publishing. If I tried to stop you from publishing, you'd be able to name a specific right other than your "natural" right that I was violating. Yes, the First Amendment says I can't violate certain rights, but it's understood in the courts that the negative of the First Amendment also creates positive rights. My being disallowed to stop you from publishing creates in you the right to not be stopped in publishing.

                    If jury nullification isn't illegal, then it is legal. But it's not legal, since no one has the right to do it. There is no middle ground that I know of--it's a strict dichotomy between legal and illegal.

                    I simply for the life of me do not understand this natural right argument you've been making over several threads. Do you have any caselaw that demonstrates your point? You know I love the caselaw. :)

                     

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                      velox (profile), Feb 8th, 2011 @ 2:20pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      "I simply for the life of me do not understand this natural right argument you've been making over several threads. Do you have any case-law that demonstrates your point? You know I love the case-law. :)"
                      Joe: Case-law is the wrong place to look, but there is an excellent answer to your question.
                      I think you should remember that people who are not lawyers tend to believe there is a difference between what is right or true, and what is legal. They also have a belief that there is a distinction between a natural right and a legal right.
                      Many lawyers consider only the law, and the statutory rights it grants, to have any significance in society.

                      I don't know if you have forgotten that this different perspective exists, but if not, then you certainly seem ready to deny its validity.

                      If the latter is true, I would refer to not to case-law, but rather to another source, a singularly important document written by Thomas Jefferson in which he affirms a belief in inalienable right, which is a synonym for natural right.
                      To refresh our memory here are some important excerpts.
                      "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alteror to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
                      AJ, the above is part of a document which is taken as a foundational statement for what Americans believe. Can you tell me that you honestly believe that the fundamental beliefs expressed are wrong?

                      Don't tell me that the only way the people are allowed to make changes is by the mechanisms of existing government, because the disruption of the existing government was exactly what was being undertaken when this document was written. The justification for that disruption is plainly seen in Jefferson's words, to be the unalienable rights of men.

                       

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                        average_joe (profile), Feb 9th, 2011 @ 9:46am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        I'm aware of the theories, I just don't think they have much application in real life. Not for me anyway. I'm more focused on rights, duties, privileges, immunities, and remedies. The philosophical underpinnings don't really appeal to me so much. Is there a right, or isn't there? Is there a remedy, or isn't there? Etc. That's what I focus on. I leave the philosophy to the philosophizers. Once people start talking about inalienable rights, honestly, I just tune it out.

                         

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                          Jay (profile), Feb 9th, 2011 @ 11:47am

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          That is to your detriment since Plato, Socrates, and other philosophers have greatly influences the sciences far more than you can imagine.

                          Ever hear of the Socratic method? It's a way to underpine the idea in sophistry.

                          And honestly, not all cases of law remain black and white.

                           

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                            average_joe (profile), Feb 9th, 2011 @ 12:13pm

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                            No duh. If everything was black and white, lawyers wouldn't have much to do.

                             

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                              Jay (profile), Feb 9th, 2011 @ 11:33pm

                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                              It's more a suggestion that perhaps you should study more than law.

                              Ironic though that most lawyers never want to study philosophy now, when it was so interconnected in earlier law... Oh well, such is the times.

                               

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                                Karl (profile), Feb 10th, 2011 @ 11:33pm

                                Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                Yeah, when I was getting my philosophy degree (while I was getting my music composition degree), most of my classmates were only there because they were studying law.

                                What the hell happened?

                                 

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                          velox (profile), Feb 9th, 2011 @ 4:46pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          "Once people start talking about inalienable rights, honestly, I just tune it out."
                          Yes, and I understand why you, and most other lawyers do exactly that.
                          You tune out because the law in the United States is assumed to be the practical application of those philosophical underpinnings... and because spending time talking about philosophy sometimes can get in the way of getting real work done. After all, we live in practice, and not in theory.
                          --Fair enough

                          However, it remains true that if citizens find that the law does not accurately represent the principles on which our country was founded, then that's when those citizens will be ready (and many would argue should be ready) to consider actions such as jury nullification.

                          I must point out that if you fail to consider this point of view as being valid, it would be easy to conclude that you don't really believe what Thomas Jefferson wrote.

                           

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                      Karl (profile), Feb 8th, 2011 @ 11:05pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      If I tried to take away your ability to breath, you'd have recourse in the courts whether it's a tort (trespass, battery, unsafe work condition, etc.) or a crime (attempted murder, battery, etc.).

                      But even if I did not have recourse to the courts, that would not mean that I do not have the right to breathe. Even if tresspass, battery, unsafe work conditions, or attempted murder were not against the law - it would not take my right to breathe away from me.

                      Yes, the First Amendment says I can't violate certain rights, but it's understood in the courts that the negative of the First Amendment also creates positive rights.

                      The First Amendment does no such thing. The First Amendment did not create any rights. It "secured" or "endorsed" the right to free speech. If the First Amendment had never existed, I would still have a right to publish whatever I wanted. If the government wrote laws proscribing this right, it would not mean I don't have that right; it would mean that the government is trampling on my rights, and is therefore totalitarian. The First Amendment was not written to grant rights to the public; it was written to define a just government.

                      That's the thing I'm trying to point out here. By your logic, every right that any human being could possibly have is merely a statutory right. That is, it's a right that only exists through statutory laws - that is, the whim of the government, and could be taken away at a moment's notice if the legal system decided to do so. The right to free speech is no greater than the right to a parking permit. That is "legalism," the belief that what is just is exactly the same as what is legal. It is a doctrine that has propped up totalian governments around the globe, and it is not one that I think you want to advocate.

                      It is also the exact opposite of the political theory that created the American justice system. According to the founding fathers, natural ("inalienable") rights are the sole justification for legal rights, not the other way around.

                      If jury nullification isn't illegal, then it is legal. But it's not legal, since no one has the right to do it. There is no middle ground that I know of--it's a strict dichotomy between legal and illegal.

                      You're right, there is a strict dichotomy between legal and illegal. It is illegal if it disobeys a written law. If it does not, then it is legal. Period.

                      In other words, "it's not legal, since no one has the right to do it" is 100% false. Whether anyone "has the right to do it" is completely immaterial to its legality or illegality. A judge (or any other person) could claim that they "have no right to do it," but unless their opinion is backed up by written laws, tough titties for them - their opinions carry no more weight than yours or mine.

                      As far as nullification is concerned, you don't have to believe me. Let's do a thought experiment here. It is certainly possible to declare a mistrial if the judge suspects jury nullification. And it is possible for the legal system to consider jury nullification as grounds for appeal.

                      Yet this has been tried several times, and every time it was, the argument was rejected - at the circuit court level, and at the Supreme Court level. Why do you think that happened?

                      Do you have any caselaw that demonstrates your point?

                      I suspect you know this, but for a discussion of "statutory" vs. "natural" rights, check out the article about statutory rights on Wikipedia.

                      This is more about political theory than case law; it is about how the law is justifiable, not about how it is interpreted. But there are some occasional examples in caselaw. Probably the closest legal parallel is when judges consider "common law" rights. "Common law" is a very broad term, however, and refers to a lot more than natural rights. But it's a good start at least.

                       

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                        Karl (profile), Feb 8th, 2011 @ 11:29pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        One final point.

                        I'd like you to look at the cases you quoted again, and rethink your opinion. In all of those cases, jury nullification was raised by the defendant in order to grant a mistrial. (This is pretty much by default, since double jeopardy rules prevent the prosecution from appealing an innocent verdict.)

                        And in every case, the court sided with the jury. In other words, the "right" of jury nullification is considered so sacrosanct, that it overrules even the right of the defendant to get a fair trial.

                        Given this fact, how could you possibly believe that jury nullification is unlawful?

                         

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                          Karl (profile), Feb 9th, 2011 @ 4:54am

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          In all of those cases

                          Sorry, having thought about this, I shouldn't have said all of the cases. Many were.

                          The situation is this: A defendant was charged with two (or more) crimes, both of which had roughly the same standard of evidence. He was convicted of one, but not the other. He claimed that since the evidence was insufficient for convicting him of one, he should not have been convicted of the other. The only reason he was convicted was because of jury nullification.

                          Judges essentially said "tough," and let the convictions stand. The oft-quoted Steckler case is one of those cases.

                           

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                        average_joe (profile), Feb 9th, 2011 @ 6:30am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        I appreciate the explanations, Karl. I disagree with much of it, but let's leave it that for now. I just wanted you to know I read your responses.

                         

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                          Karl (profile), Feb 9th, 2011 @ 3:42pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          I just wanted you to know I read your responses.

                          Fair enough. The discussion was only tangental to the topic, anyway.

                           

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              btr1701 (profile), Feb 8th, 2011 @ 9:37am

              Re: Re: Re: Re: Re:

              > Can you name something I can do legally but that I
              > don't have the right to do?

              Drive a car.

              As we are constantly told by those in authority, driving is a privilege, not a right. You can legally drive, but you have no right to do so.

               

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                average_joe (profile), Feb 8th, 2011 @ 10:04am

                Re: Re: Re: Re: Re: Re:

                Drive a car.

                As we are constantly told by those in authority, driving is a privilege, not a right. You can legally drive, but you have no right to do so.


                Don't people who meet the criteria (insurance, driver's license, etc.) have the right to drive a car? And no one can infringe that right without due cause? If I had more time, I'd find better language, but the court here makes the point:
                All persons have equal right to use the public streets and highways for purposes of travel by proper means with due regard to the corresponding rights of others, and it is unquestioned that an automobile is a proper means of conveyance on the public highways . . . . Certainly a citizen is not to be deprived of his right to use any means of conveyance within his control . . . . Public highways are established for the benefit of all who find it necessary or desirable to travel thereon, adopting any means of conveyance not prohibited by law.
                Butler v. Cabe, 116 Ark. 26, 171 S.W. 1190, 1190 (1914).

                 

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                  btr1701 (profile), Feb 8th, 2011 @ 10:38am

                  Re: Re: Re: Re: Re: Re: Re:

                  > Don't people who meet the
                  > criteria (insurance, driver's
                  > license, etc.) have the
                  > right to drive a car?

                  I would think so, but that's not what the government has been telling people since cars were invented. Driving is a mere privilege, revocable upon the government's whim and upon which any number of restrictions may be placed that could not be placed on something which is a right.

                   

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                    average_joe (profile), Feb 8th, 2011 @ 10:55am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    I would think so, but that's not what the government has been telling people since cars were invented. Driving is a mere privilege, revocable upon the government's whim and upon which any number of restrictions may be placed that could not be placed on something which is a right.

                    Can you cite one source for the claim that driving is "revocable upon the government's whim"?

                    And you do realize that almost all things that are your right are burdened with restrictions, right? The restrictions don't mean it's not a right.

                     

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                      btr1701 (profile), Feb 8th, 2011 @ 12:47pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      > Can you cite one source for
                      > the claim that driving is "revocable
                      > upon the government's whim"?

                      In several states, the government can revoke a drivers license on the side of the road if a person refuses to take a sobriety test. No due process, no trial, no presumption of innocence, nothing. It's not even done by a member of the judiciary. It's done by a cop.

                      Can the government do that with things that *are* rights? Can the cops (or even judges, congressmen or the president himself) revoke your right to remain silent? Can they summarily nullify your right to free speech? Or any of the other recognized rights? Not hardly.

                      Driving is a privilege not a right. Yet you can legally drive. You asked for an example of such a thing. Now you have one.

                       

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                        average_joe (profile), Feb 8th, 2011 @ 1:57pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        If someone's license is taken away for a reason, like refusing to take a sobriety test, then the license is not being taken away on a whim. That's not what whim means.

                         

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                          btr1701 (profile), Feb 8th, 2011 @ 4:14pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          > If someone's license
                          > is taken away for a
                          > reason, like refusing
                          > to take a sobriety test,
                          > then the license is
                          > not being taken away
                          > on a whim. That's not
                          > what whim means.

                          All human behavior is motivated behavior. Even the most ephermeral of decisions has a reason behind it. If lack of reason is prerequisite for a whim to be valid, then there's no such thing as a whim.

                           

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                Karl (profile), Feb 9th, 2011 @ 5:10am

                Re: Re: Re: Re: Re: Re:

                Drive a car.

                Here's a more specific example: Make a right turn on red.

                 

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                  average_joe (profile), Feb 9th, 2011 @ 6:58am

                  Re: Re: Re: Re: Re: Re: Re:

                  Here's a more specific example: Make a right turn on red.

                  In my state, that right is codified in the motor vehicle statutes.

                   

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              Anonymous Coward, Feb 10th, 2011 @ 2:51am

              Re: Re: Re: Re: Re:

              I can name something you can do legally that you don't have a right to do. It's a rather topical thing, considering. That is to serve on a jury. You may be required to do so, but you have no right to do so and cannot insist that you be allowed to do so.

              And lest someone start talking about 'having the right' because you've been selected, that would be as absurd here as the 'once you have permission to drive you have the right' argument. Permission is granted to serve on a jury just as permission is granted to drive. The fact that there are rules which govern why that permission may be revoked does not a right make.

              If driving were a right you would not be required to pass a test to get a license, a license which implies in and of itself that driving is not a right. There are conditions before the fact which must be satisfied before permission is granted.

              As an aside, I find it interesting that in some parts of this discussion 'rights' are not considered 'rights' unless there is some mention of them in the Constitution, (or a reference in case law!) while in other places a 'right' morphs into literally anything you can legally do.

              Doesn't it seem like a 'right' should be the same thing all the time?

              I think this whole discussion of 'rights' would benefit from some definitions. Sometimes it seems that the word 'rights' is being used as a synonym for 'anything you are allowed to do' or 'anything which is legal to do'. But on the face of it, rights are not things you are 'allowed' to do. 'Allowed' implies permission. Rights are things for which you do not NEED permission to do. Rights are not granted, only recognized. They do not come from the Constitution and the Constitution, as recognized by it's own text, is not the last word on what rights exist.

              However not everything legal to do is a right, for instance driving a car or serving on a jury or entering someone else' home with their permission or taking someone else' property with their permission. (I'm sure there are myriad other examples, if required.)

               

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        Anonymous Coward, Feb 7th, 2011 @ 10:48pm

        Re: Re:

        I'd say his interpretation is pretty good. Yours, on the other hand, is not.

        The courts have basically said that jury nullification is a necessary evil in criminal cases, as long as general verdicts (as opposed to special verdicts) are used, but that nullification is a violation of the juror's oath, and courts should do everything in their power to prevent such violation/nullification.

        It does not mean "they must know they have that right before hand since the courts don't like that law."

         

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      harbingerofdoom (profile), Feb 7th, 2011 @ 7:41pm

      Re:

      i believe shannon is not applicable as it limits specific information which is sentencing. as such it may limit nullification when someone is seeking to convict on what they may perceive as either greater or lesser charges, but does nothing when the nullification results in acquittal.

      as for powell, strictly adhered to, it only discusses giving a jury nullification instructions but does nothing to either remove the ability for a jury to nullify, nor enforce that the concept of nullification is valid.

      and stadefer? you are going to have to explain how that has anything to do with nullification cause i guess im just not getting it... my not ever having gone to law school or the fact that im not a lawyer might have something to do with why im not getting it....

      ...but i kinda doubt it...

       

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        average_joe (profile), Feb 7th, 2011 @ 8:29pm

        Re: Re:

        The court whose language I quoted was only pulling certain points from each of those cases, not adopting those cases' holdings as a whole.

         

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          harbingerofdoom (profile), Feb 7th, 2011 @ 8:51pm

          Re: Re: Re:

          so, then you are admitting to cherrypicking and twisting them in order to make them appear to support your case when they clearly do not when taken in context?

           

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            average_joe (profile), Feb 7th, 2011 @ 8:59pm

            Re: Re: Re: Re:

            Not at all. Each sentence from that quote comes from a different case, and each sentence is an accurate statement of that specific point from that case. That's how you craft legal arguments. You build from different points in different cases. There's nothing "twisting" about it as nothing is quoted out of context and nothing is purported to stand for something it doesn't.

             

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            Anonymous Coward, Feb 7th, 2011 @ 10:53pm

            Re: Re: Re: Re:

            Why, it's almost as if he picked the most relevant points from different sources and put them together to support an argument!

            The nerve of this guy!!!

             

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      average_joe (profile), Feb 7th, 2011 @ 10:03pm

      Re:

      I just realized that this court is the Ninth Circuit... of Florida. LOL! That doesn't change the analysis since the Supreme Court has made clear there is no right to nullification, but I thought I'd clear up my mistake.

       

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    Anonymous Coward, Feb 7th, 2011 @ 8:00pm

    First Amendment scrutiny


    It is precisely because there is a compelling interest that this carries past the courtroom's doors.


    This compelling interest is why the judge's order
    does not violate the First Amendment.


    Please identify the compelling state interest.

    You're flatly wrong that aeven a compelling state interest by itself ttrumps the First Amendment. First, we are not talking about a historically unprotected category of speech obscenity, fighting words, or incitement to unlawful action.


    We are talking about a prior restraint on truthful information on a matter of public concern.


    What compelling interest is served by the judge's order?


    Protecting the trial against jury tampering is of course a compelling state interest, but under the strict scrutiny framework, the restriction upon speech must not only serve a compelling interest but must also be narrowly tailored employing the least restrictive means.


    If the jury is in its right to acquit based on its own moral determination, it's not tenable to hold that informing the juror about the law of nullification is tampering.






    Please explain Mr. Average lawyer Joe how the order is narrowly tailored employing the least restrictive means.


    If you had provided this answer in a bar exameyou are unfit for the bar.


    Second, a prior restraint on speech is suspect and is not constitutional just because the state interest is compelling.


    In the court's dicta the interest allowing prior restraint is often
    referred to one of the highest order.



    There are a few cases from the lower court's having upheld prior restraint on speech, United States v. Progressive (suppression of the nuclear bomb formula) and an order forbidding the CNN from broadcasting the Noriega tapes, but prior restraint on



    truthful and publicly available information is seldomely found constitutional.

     

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      average_joe (profile), Feb 7th, 2011 @ 8:20pm

      Re: First Amendment scrutiny

      Snore. It's not truthful information since there's no right to nullification. There is only a power. For reasons why nullification is a compelling state interest, see the really long quote I posted from the Second Circuit.

       

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        harbingerofdoom (profile), Feb 7th, 2011 @ 8:57pm

        Re: Re: First Amendment scrutiny

        okay... im getting a bit tired of ignoring your blatant twisting of logic here.

        you can say all you want that the jury does not have a right to nullification, they only have the power.... but the statement in and of itself is a contradiction in terms.

        additionally the fact that the courts have said the jury does, in fact, have the power of nullification gives them a de facto right regardless of if you want to admit that as a fact or not.

        the fact that the courts have said that juries do have the power of nullification trumps the particular use of compelling interest when it cannot be accurately stated (no matter how you try to twist it) that nullification is not something a jury is allowed to do.

         

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          average_joe (profile), Feb 7th, 2011 @ 9:05pm

          Re: Re: Re: First Amendment scrutiny

          Having the power to do something does not mean having the de facto right. There simply is no right. There is no contradiction. The word "right" has a very specific meaning. You're twisting that meaning, not me, and not the courts.

          The fact that juries can do this and nobody can stop them does not negate the compelling interest test. Nor is it accurate to say that the jury is "allowed to do" it. Being able to do something is different from being allowed to do it.

           

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            Any Mouse (profile), Feb 8th, 2011 @ 12:09am

            Re: Re: Re: Re: First Amendment scrutiny

            Is it illegal, then? If it isn't illegal, how do they NOT have the right? I am seriously not understanding this position. If it has not been legislated out, then it is an inherent right, and no amount of saying there is no right will restrict the use of this power.

             

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            Gwiz (profile), Feb 8th, 2011 @ 9:36am

            Re: Re: Re: Re: First Amendment scrutiny

            The word "right" has a very specific meaning.

            http://dictionary.reference.com/browse/right

            Which of the meanings is the "specific meaning" you are referring to?

            I count 62 different meanings of the word "right".

            I am not trying to be argumentative about this - I truly don't understand this concept of "having the power, but not the right"

             

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            harbingerofdoom (profile), Feb 8th, 2011 @ 10:15am

            Re: Re: Re: Re: First Amendment scrutiny

            having the power to do so does in fact mean a de facto right. im sorry but you are wrong on that.
            the very definition of de facto as applied to legal terms is factually having the power to do so without specific legal standing to do so. that pretty much sums up exactly what you are saying and thus creates the de facto right.


            my point on the compelling interest inst that the fact that the ability to nullify negates the compelling interest its actually about the idea that the compelling interest would never under any situation be grounds to deny legal and accurate information especially when such information is in regards to a key issue for the creation of the united states and thus the constitution and its amendments, that being trial by jury and the rules surrounding it.

            which quite honestly in my opinion makes the greatest argument for nullification right there.

             

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          Anonymous Coward, Feb 7th, 2011 @ 11:00pm

          Re: Re: Re: First Amendment scrutiny

          "you can say all you want that the jury does not have a right to nullification, they only have the power.... but the statement in and of itself is a contradiction in terms."

          No, it's really not. I'm not sure why you equate "power" with a "de facto right." Do I have the "de facto right" to shoot someone? I have the power!

          If someone were distributing literature on how to kill a jury member without getting caught, I don't think the truthfulness of the information would end the First Amendment analysis.

          At any rate, we don't know whether the information in this case was truthful or not, regardless of how you view jury nullification.

           

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            Any Mouse (profile), Feb 8th, 2011 @ 12:10am

            Re: Re: Re: Re: First Amendment scrutiny

            In your example, you have the power, but the right has been legislated out. Therefore no right exists. We are discussing a power that has not been deemed illegal, and therefore the inherent right exists.

             

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              Gwiz (profile), Feb 8th, 2011 @ 9:18am

              Re: Re: Re: Re: Re: First Amendment scrutiny

              This confuses me greatly also (as expressed in previous comments).

              How can I have the ability (power) to do something that is not illegal and I will not be punished for doing, but still not have the right to do?

              Is not the fact that something is legal to do giving the me right to legally do it?

               

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                Any Mouse (profile), Feb 8th, 2011 @ 3:42pm

                Re: Re: Re: Re: Re: Re: First Amendment scrutiny

                That's exactly what I was saying. You have the ability to do it, and no law prohibits you from doing it, therefore you have an inherent right.

                 

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        G Thompson (profile), Feb 7th, 2011 @ 10:45pm

        Re: Re: First Amendment scrutiny

        Your First Chief Justice, John Jay stated it elequently when he told the jurors: "It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision.....you have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy. - Georgia v. Brailsford 3 U.S. 1 (Dall.) (1794) [my emphasis]

        Also you might want to look at your own 6th Amendment where a jury is to be unbiased and impartial (venire) and therefore can not legally (though it happens all the time) be told they must give a verdict of guilt based on the evidence. A judge by definition cannot mandate a verdict, it is up to a jury to do this and the Juries decision and how they came to that is sacrosanct and can never be questioned.

         

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        Gabriel Tane (profile), Feb 8th, 2011 @ 6:00am

        Re: Re: First Amendment scrutiny

        Damn it Joe, this is why people attack you. That was condescending as hell and, well, conceited. In case you miss why, let me translate for you:

        "Only my interpretation is right, so go back and read it again... then you'll see why I'm right and you're wrong".

        Don't assume that you're the only one who can be right and then condescendingly dismiss their views with things like "Snore".

         

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          average_joe (profile), Feb 8th, 2011 @ 6:17am

          Re: Re: Re: First Amendment scrutiny

          The "snore" part was in reference to that poster's silly attitude. Apparently you don't seem to think there's anything wrong with his attitude, but from me, it gets a "snore."

           

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            Gabriel Tane (profile), Feb 8th, 2011 @ 6:39am

            Re: Re: Re: Re: First Amendment scrutiny

            Sorry... but what 'silly' attitude? He seemed to be on to something there, up until he mentioned that giving such answers would have had you fail the bar.

            Aside from some typographical errors and a bit of snideness, I hardly see where you're justified in looking down your nose at him and dismissively waiving him away like he's an offending servant daring to infringe upon your time.

            To me, it looked like you were dismissing an argument that you would have a difficult time rebuking on factual basis.

             

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              average_joe (profile), Feb 8th, 2011 @ 6:46am

              Re: Re: Re: Re: Re: First Amendment scrutiny

              up until he mentioned that giving such answers would have had you fail the bar.

              Ding. Ding. Ding. It gets really old.

              To me, it looked like you were dismissing an argument that you would have a difficult time rebuking on factual basis.

              Are you kidding me?

               

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                Gabriel Tane (profile), Feb 8th, 2011 @ 7:26am

                Re: Re: Re: Re: Re: Re: First Amendment scrutiny

                But instead of addressing the points he was bringing up, which looked valid to me, you completely dismiss it with "snore, go read this...".

                I'm lazy... I'm not going to go read a long article you wrote on a different thread and cross-reference to address points someone else is making. And I'm not the only one who would say so.

                All I'm saying is this... if someone makes what appears to be a valid argument and you say "snore. You're wrong, go read this...", you're saying to everyone else "I don't have anything to address these points with". If his points were so ridiculous, why not address them, since it would seem to be easy to do so?

                 

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                  average_joe (profile), Feb 8th, 2011 @ 7:34am

                  Re: Re: Re: Re: Re: Re: Re: First Amendment scrutiny

                  Because his attitude turned me off, I decided to blow him off. If people want to act nice and ask questions, I'm happy to answer them. Pulling out the attitude about how I'd fail the bar exam while asking me a question won't get any love from me. Why don't you ask him why he pulled the attitude, Gabriel?

                  The reason it's a compelling state interest is because pamphleteering prospective jurors is jury tampering, and the First Amendment offers no protection to such tampering. It's criminal because it violates one's right to a fair trial.

                   

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                    Gabriel Tane (profile), Feb 8th, 2011 @ 7:53am

                    Re: Re: Re: Re: Re: Re: Re: Re: First Amendment scrutiny

                    If his attitude turned you off to addressing his points, fine... I'll look at that as I've already explained. Just understand how people are going to see you.

                    And I know why he pulled the attitude... he's a bit of a dick. Sorry, AC, but I call 'em like I see 'em.

                    Now here's the difference... if he had just said something like "wow Joe, if you went to the Bars with that attitude, you'd so fail..." without actually making some kind of argument, then by all means, bury him under some well-deserved derision.

                    But that's not what he did. He made some valid points. Points you failed to address just because he was a bit snarky.

                    Just so you know, I really don't want the job of jumping all over people who are mean or don't argue well. I'm not trying to pick on you... the only reason I'm on this is because of the martyrdom yesterday. I thought we had all reached an agreement to be nicer. Just because some AC comes in and acts like an ass doesn't mean you need to. Joe, I respect you (except for those couple of times you went way overboard and I thought your kid brother broke into your account) and I enjoy reading a learned, insider view on the law... I don't want to see you ruin that position by dropping to their level.

                    "The reason it's a compelling state interest is because pamphleteering prospective jurors is jury tampering, and the First Amendment offers no protection to such tampering. It's criminal because it violates one's right to a fair trial."
                    That's what I'm talking about... easy two-sentence answer to address his points.

                     

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                    harbingerofdoom (profile), Feb 8th, 2011 @ 10:41am

                    Re: Re: Re: Re: Re: Re: Re: Re: First Amendment scrutiny

                    "compelling interest" you keep using those words.
                    i do not think it means what you think it means.

                    at this point the judge in question has created a strict scrutiny case. until higher courts weigh in, its status as fact is still in doubt. and quite honestly i cant see how this survives strict scrutiny standards

                    its not so clear cut as you are trying to make it out to be.

                     

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                    Jay (profile), Feb 8th, 2011 @ 8:37pm

                    Re: Re: Re: Re: Re: Re: Re: Re: First Amendment scrutiny

                    "Pulling out the attitude about how I'd fail the bar exam while asking me a question won't get any love from me. Why don't you ask him why he pulled the attitude, Gabriel?"

                    Every time someone does something you don't like, and I mean EVERYTIME, you sit here and automatically go into the corner and play the victim card.

                    I've been watching this thread and the fact remains Joe that you go through a cyclical phase in your posting habits.

                    First, you are helpful in the posting. From there you begin to lash out for attention on multiple occasions with other posters. Afterwards, you go through a denial phase where you act as if you're superior to anyone else. Finally, there's the phase where you apologize for rude behavior.

                    It's as if you haven't learned anything about why people treat you and your posting as if you're better than everyone involved.

                    I've said it before AJ, I'm going to say it now. GROW UP.

                    It's frustrating to sit here and know that you can be pretty smart, but you really show it in the wrong way.

                     

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                      Jay (profile), Feb 8th, 2011 @ 8:39pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: First Amendment scrutiny

                      "It's as if you haven't learned anything about why people treat you and your posting ---"

                      ---with derision,

                      "---as if you're better than everyone involved."

                       

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    Anonymous Coward, Feb 7th, 2011 @ 9:14pm

    Snore. It's not truthful information since there's no right to nullification. There is only a power. For reasons why nullification is a compelling state interest, see the really long quote I posted from the Second Circuit.

    I don't dispute that the courts have stated that jury nullification is undesirable, and that judges should prevent it from occuring.

    However, there is a difference between controlling what counsel may tell the jury inin court and controlling third parties' exercise of free speech outside the court room.

    If the Pamphlets only states that the jury has the power as opposed to the right to acquit, or in the alternative that an acquittal saves the defendant from double jeopardy (only applicable to criminal cases) you would agree that the bar to curtailing such information is higher, since the information itself is truthful.

    Again, even if preventing jury nullification is a compelling interest, does that recognition carry over to permitting a ban on out of court speech about the jury's power.

     

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      average_joe (profile), Feb 7th, 2011 @ 9:38pm

      Re:

      I think that even if the pamphlet is incorrect in identifying nullification as a right rather than a power, it would receive the same First Amendment protection. Perhaps the judge did overstep his power, I don't really know. I do think that there are good arguments on either side, and I do think Mike was dead-on in saying this raises First Amendment issues. To have a more informed opinion than that, I'd have to do some research.

       

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    Anonymous Coward, Feb 7th, 2011 @ 9:21pm

     

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    G Thompson (profile), Feb 7th, 2011 @ 10:23pm

    Ah Jury nullification..

    or for want of a better phrase

    "The ability of a Jury, that by law is independent of the judiciary, to vote with their conscience on an unjust law without fear of persecution by the lawmakers"

    The most famous nullification case (In the USA) is the 1735 trial of John Peter Zenger.

    Zenger was charged with printing and publishing seditious libels of the then Governor of the Colony of New York, William Cosby. Despite the fact that Zenger clearly printed the alleged libels and therefore the only issue the court stated that the jury was free to decide, since as the publishing was prima facia by Zenger the court deemed the truth or falsity of the statements to be irrelevant., the jury in its infinite wisdom as citizens nonetheless returned a verdict of "Not Guilty."

    This case is the beginnings of the USA's Freedom of the press and one of the best examples of the people standing up to the government and is really why today governments, judges, and even some lawyers (if they even get taught it) do not ever ever EVER bring up the specter of Nullification.

    The Zenger trial can be read about here http://www.law.umkc.edu/faculty/projects/FTrials/zenger/zenger.html and there is also a nice link on there about Jury nullification.

    Anyone who has studied law in regards to media, defamation, et.al should know about this case. If not get out the old historical Pre-Pacer journals and read!

     

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    average_joe (profile), Feb 7th, 2011 @ 10:26pm

    The judge's order is here: http://billstclair.com/administrative-order-2011-03.pdf

    The judge cites Florida Statutes 918.12 which states:
    918.12 Tampering with jurors.—Any person who influences the judgment or decision of any grand or petit juror on any matter, question, cause, or proceeding which may be pending, or which may by law be brought, before him or her as such juror, with intent to obstruct the administration of justice, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
    So he's going with a jury tampering argument.

    He also quotes a Florida appellate court case, Nobles v. State, 769 So.2d 1063 (2000). In that case, the trial court had held that the crime of jury tampering could be proven by evidence that a defendant attempted to influence a prospective juror. The appellate court affirmed, holding that:
    We conclude that section 918.12 prohibits an attempt to influence a member of the jury venire as well as a member of the jury panel ultimately selected to try the case. . . . Section 918.12, Florida Statutes expressly prohibits an attempt to threaten or influence any person who has been summoned for jury duty and might be called upon to serve on a jury.
    The appellate court quotes a Florida Supreme Court case, Baumgartner v. Joughin, 105 Fla. 335 (1932), where it was held that:
    [W]hatever tends to obstruct the due administration of justice in the courts, by bringing undue influences or temptations or corruption to bear upon those who are likely to be selected for duty on juries, is an act calculated to obstruct the fair and impartial trial of jury cases in the courts, and as such, is a direct obstruction to the proper administration of justice which is punishable as a contempt.

    Tampering with a member of a general jury panel, or with members of a jury panel selected to try a case, or with prospective jurors before they are sworn, is universally regarded as a contempt of court to the same extent as tampering with jurors actually sitting in the trial of a case.
    So to me, the issue is simply whether preventing a person from tampering with prospective jurors violates that person's First Amendment rights. I think the judge has a great compelling interest argument that he can prevent such activity.

     

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      G Thompson (profile), Feb 7th, 2011 @ 10:54pm

      Re:

      Ah yes contempt of court. That old bailiwick where the court is judge, jury and executioner on its own domain.

      Oh and "Prospective jurors before they are sworn"? Isn't that every single able bodied citizen who could be EVER called to jury duty now and in the future? or was the Baumgartner v. Joughin, 105 Fla. 335 (1932) citation obiter and someone forgot to state a caveat on what is meant (not presumed) by a "prospective juror" which a reasonable person would presume to mean after voir dire is performed but before sworn.

      But then again.. it is Florida ;)

       

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        Anonymous Coward, Feb 7th, 2011 @ 11:04pm

        Re: Re:

        Yeah, that statute, as written, appears to cover at least some types of activity that are probably constitutionally protected.

        Although, perhaps the intent requirement gets around some of that.

         

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        Anonymous Coward, Feb 7th, 2011 @ 11:06pm

        Re: Re:

        Also, I think that is the first time I've ever seen the term "bailiwick" used literally and properly.

         

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        average_joe (profile), Feb 7th, 2011 @ 11:31pm

        Re: Re:

        I had to look "bailiwick" up. Nicely done. I think the crux here is that the pamphlets were being handed out to people who were in fact prospective jurors for the specific purpose of influencing them. If the judge was trying to prevent activity that only might affect prospective jurors, I'd agree that that would be prior restraint. But as it is, I think it's debatable.

         

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    velox (profile), Feb 7th, 2011 @ 11:17pm

    Wow--- You head off to work and look what happens when you're busy doing other stuff...> I sure missed a day of it here today.
    It's going to take me several days to read the cases and digest the issues here.

    @ RD and AJ: Thanks for starting this heated discussion that we've all learned from.
    Now perhaps the name-calling will tone down -- but probably not much longer than tomorrow morning when 'Anonymous' starts in at again.

     

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      Anonymous Coward, Feb 7th, 2011 @ 11:59pm

      Re:

      but probably not much longer than tomorrow morning when 'Anonymous' starts in at again.

      As if though you're not "anonymous".

       

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    average_joe (profile), Feb 8th, 2011 @ 12:09am

    I found a case from the Alaska Supreme Court coincidentally involving this same FIJA group. It's Turney v. State, 936 P.2d 533 (1997).

    In that case the defendant, Turney, was charged with jury tampering for handing out pamphlets and telling jurors their "rights" near the courthouse in Fairbanks. Turney argued that Alaska's jury tampering statute was overbroad because it criminalized protected speech. The court rejected the overbreadth argument, noting that:
    [I]t is the intent to influence the outcome that is critical. Whether such statements violate the statute turns on the intent of the utterer; a misguided or erroneous suggestion does not violate the statute absent the prohibited criminal intent. ***

    Speech aimed at influencing the juror's conduct as a juror, i.e., the juror's execution of the responsibilities imposed by the trial court in a particular case, is not constitutionally protected. Justice Frankfurter noted that: "In securing freedom of speech, the Constitution hardly meant to create the right to influence judges or juries. That is no more freedom of speech than stuffing a ballot box is an exercise of the right to vote." Pennekamp v. Florida, 328 U.S. 331, 366, 66 S.Ct. 1029, 1047, 90 L.Ed. 1295 (1946) (Frankfurter, J., concurring).

    Other courts that have looked at the issue have also recognized that utterances involved in the obstruction of justice are not protected by the First Amendment. In rejecting an overbreadth and vagueness habeas challenge to a witness tampering statute, the federal district court in New Hampshire held that the defendant's interest in communicating with a potential witness with the intent to tamper was “minuscule” and outside the scope of First Amendment protection. Kilgus v. Cunningham, 602 F.Supp. 735, 739-40 (D.N.H.), aff'd, 782 F.2d 1025 (1st Cir.1985). The Florida Court of Appeals similarly concluded that “[e]fforts to influence a grand jury in its deliberations respecting specific matters under investigation by it are not shielded by the constitutional guarantee of free speech.” Dawkins v. State, 208 So.2d 119, 122 (Fla.App.), cert. denied, 393 U.S. 854, 89 S.Ct. 101, 21 L.Ed.2d 123 (1968). In concluding that the presence of spectators wearing “Women Against Rape” buttons at a rape trial deprived the defendant of a fair trial, the Ninth Circuit noted that “[w]here fair trial rights are at significant risk ... the first amendment rights of trial attendees can and must be curtailed at the courthouse door.” Norris v. Risley, 918 F.2d 828, 831 (9th Cir.1990).

    We conclude that because AS 11.56.590 is narrowly drawn and proscribes only speech intended to influence a juror in his or her capacity as a juror in a particular case, it does not reach speech protected by the First Amendment, and thus is not impermissibly overbroad.

     

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      btr1701 (profile), Feb 8th, 2011 @ 10:46am

      Re:

      > "In securing freedom of speech, the Constitution
      > hardly meant to create the right to influence
      > judges or juries.

      Of course it did. The justice who wrote this was out to lunch. The Founders specifically put the right to redress the government for grievances into the Constitution. The judicial branch is clearly part of the government. (Hence the word "branch".) Therefore the people have a right to attempt to influence the judicial branch and redress their grievances.

      To say otherwise is ignoring reality. This is precisely the sort of ridiculous ends-based "interpretation" of the Constitution that's got us where we are today, where courts are routinely "interpreting" the document to mean the exact opposite of what it actually says.

       

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    average_joe (profile), Feb 8th, 2011 @ 12:36am

    The Supreme Court in Cox v. State of Louisiana, 379 U.S. 559 (1965), weighed in on the constitutionality of a statute that disallowed picketing near courthouses:
    There can be no question that a State has a legitimate interest in protecting its judicial system from the pressures which picketing near a courthouse might create. Since we are committed to a government of laws and not of men, it is of the utmost importance that the administration of justice be absolutely fair and orderly. This Court has recognized that the unhindered and untrammeled functioning of our courts is part of the very foundation of our constitutional democracy. See Wood v. Georgia, 370 U.S. 375, 383, 82 S.Ct. 1364, 1369, 8 L.Ed.2d 569. The constitutional safeguards relating to the integrity of the criminal process attend every stage of a criminal proceeding, starting with arrest and culminating with a trial ‘in a courtroom presided over by a judge.’ Rideau v. Louisiana, 373 U.S. 723, 727, 83 S.Ct. 1417, 1419, 10 L.Ed.2d 663. There can be no doubt that they embrace the fundamental conception of a fair trial, and that they exclude influence or domination by either a hostile or friendly mob. There is no room at any stage of judicial proceedings for such intervention; mob law is the very antithesis of due process. See Frank v. Mangum, 237 U.S. 309, 347, 35 S.Ct. 582, 595, 59 L.Ed. 969. (Holmes, J., dissenting). A State may adopt safeguards necessary and appropriate to assure that the administration of justice at all stages is free from outside control and influence. A narrowly drawn statute such as the one under review is obviously a safeguard both necessary and appropriate to vindicate the State's interest in assuring justice under law.

    Nor does such a statute infringe upon the constitutionally protected rights of free speech and free assembly. The conduct which is the subject of this statute-picketing and parading-is subject to regulation even though intertwined with expression and association. The examples are many of the application by this Court of the principle that certain forms of conduct mixed with speech may be regulated or prohibited. The most classic of these was pointed out long ago by Mr. Justice Holmes: ‘The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.’ Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470. A man may be punished for encouraging the commission of a crime, Fox v. Washington, 236 U.S. 273, 35 S.Ct. 383, 59 L.Ed. 573, or for uttering ‘fighting words,’ Chaplinsky v. New Hampshire,315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031. This principle has been applied to picketing and parading in labor disputes. See Hughes v. Superior Court,339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985; Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834; Building Service Employees, etc. v. Gazzam, 339 U.S. 532, 70 S.Ct. 784, 94 L.Ed. 1045. But cf. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093. These authorities make it clear, as the Court said in Giboney, that ‘it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.’ Giboney v. Empire Storage & Ice Co., supra, 336 U.S. at 502, 69 S.Ct. at 691. ***

    We hold that this statute on its face is a valid law dealing with conduct subject to regulation so as to vindicate important interests of society and that the fact that free speech is intermingled with such conduct does not bring with it constitutional protection.
    You lawyers out there correct me if I'm wrong, but if the Supreme Court says that a statute prohibiting picketing next to the courthouse is constitutional, then a judge's order prohibiting similar conduct would also be constitutional. That's my take anyway.

     

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      Jay (profile), Feb 8th, 2011 @ 8:18pm

      Re:

      ...

      Work with me. Picketing is all about raising your voice on an issue.

      These people are giving out pamphlets.

      How you're trying to put these in a similar category when the results of either are vastly different is truly unbelievable.

       

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    Chris in Utah (profile), Feb 8th, 2011 @ 12:47am

    Gem on the pebbles on the road

    Judges may opine that juries don't have that right; but unless that right is removed by law, they're not doing anything unlawful.

    A few have brought this up in more colorful ways but I wanted to bring to the question that has been bugging all of us and the de facto point of the article. It's been bugging me ever since I was a kid looking at lady justice and wondering why the blindfold.

    Psuedo-warning this may be a intellectual exercise in thought. We, as a society, have given ourselves over to the perception that we have the facts to interpret the intent rounded around common sense. Given that do we have the basics to hear every fact that influence our decisions?

    Secondary to this isn't even self-awareness but a collaboration to justify punishment on another human being. Ya really want to go blind folded? Or ask others to?

    It's a bit unfair to ask this of a presenter of one side of case (Joe or any lawyer/debater) but I ask as a logical being with Truth as his #1 virtue. It may be a No-No to come right out and say put yourselves in there shoes but we still understand and conclude the rational to getting altered all the way to justifiable homicide. So Lastly(mostly to the judge & Joe) if you answered yes to either of the above how the hell is debatable at all to squelch any information that influences our decisions?

    P.S. I get a smile on my face every time that this may be the not so secret way of getting out of jury duty as the judicial system stands, in most courts, now.

     

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    Anonymous Coward, Feb 8th, 2011 @ 6:49am

    Dihydrogen monoxide:

    * is called "hydroxyl acid", the substance is the major component of acid rain.
    * contributes to the "greenhouse effect".
    * may cause severe burns.
    * is fatal if inhaled.
    * contributes to the erosion of our natural landscape.
    * accelerates corrosion and rusting of many metals.
    * may cause electrical failures and decreased effectiveness of automobile brakes.
    * has been found in excised tumors of terminal cancer patients.

    Despite the danger, dihydrogen monoxide is often used:

    * as an industrial solvent and coolant.
    * in nuclear power plants.
    * in the production of Styrofoam.
    * as a fire retardant.
    * in many forms of cruel animal research.
    * in the distribution of pesticides. Even after washing, produce remains contaminated by this chemical.
    * as an additive in certain "junk-foods" and other food products.

     

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    iloilo jones, Feb 8th, 2011 @ 9:24am

    Kunstler on Jury Nullification

    For those of you who doubt the authority of the juror, or who fail to fathom the reasons for same:

    http://fija.org/download/ES_William_Kunstler_Jury_Article.pdf

     

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      Karl (profile), Feb 9th, 2011 @ 5:30am

      Re: Kunstler on Jury Nullification

      This is an excellent article, and I would advise anyone who is curious to read it.

      Average Joe, you should be particularly interested.

       

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        Jay (profile), Feb 9th, 2011 @ 6:16am

        Re: Re: Kunstler on Jury Nullification

        If only it had been used in the Whitney Harper or Jammie Thomas cases...

         

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          average_joe (profile), Feb 9th, 2011 @ 6:34am

          Re: Re: Re: Kunstler on Jury Nullification

          If only it had been used in the Whitney Harper or Jammie Thomas cases...

          If I'd been on that jury, I would have brow-beat those other jurors into coming in at the statutory minimum. Those verdicts were ridiculous. (See, we don't disagree on everything.) I wouldn't, however, have agreed to nullify anything if someone suggested it.

           

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        average_joe (profile), Feb 9th, 2011 @ 6:51am

        Re: Re: Kunstler on Jury Nullification

        Average Joe, you should be particularly interested.

        I'll try and read it, but I get the heebie-jeebies when I read stuff that's slanted too far to one side. :)

         

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          Karl (profile), Feb 9th, 2011 @ 3:37pm

          Re: Re: Re: Kunstler on Jury Nullification

          I'll try and read it, but I get the heebie-jeebies when I read stuff that's slanted too far to one side. :)

          It's really not slanted at all, in my opinion. Besides, most of it is quotes from case law and legal history. It's good stuff to think about either way.

           

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    Chris in Utah (profile), Feb 9th, 2011 @ 1:24am

    My insight failed so why not some humor

    Objection! badgering the witness!
    Overruled I don't want to hear it
    The jury will disregard!

     

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    jasontaylor (profile), Feb 9th, 2011 @ 8:30pm

    The endearing grant of a right

    to a "public trial by an impartial jury" (con. amd. #6) might seem to imply that juries decide... See http://twitter.com/jasontaylor7 for the rest of this comment.

     

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    Anonymous Coward, Feb 10th, 2011 @ 11:40am

    Right to a fair trial

    Just to throw out something new, what about the defendant's right to a fair trial?

    I assert that from time to time, in an otherwise pretty good system, an unjust law makes it onto the books. (Think Prohibition, as a possible example.) So far, so good?

    You might argue that nullification is not the right way to fix this law, and you would be right to a point, as removal of the law by whatever legal process is provided is superior to nullification on a case by case basis.

    But what about the individual who is charged with breaking this unjust law in the interim? Is it even possible for him to have a fair trial if:

    ------1) He is guilty of breaking the stipulated unjust law
    ------2) The jury is bound by the 'Jurors' Oath'. (Seemed like it needed to be capitalized, since this thing you're required to do seems to have some sort of holy status)
    ------3) The jury is further admonished by the judge that if the evidence shows that the individual broke the unjust law, that they must find him guilty of breaking the unjust law.
    ------4) The jury is further reminded that if they vote to acquit because the law is unjust they are bad people and will go to the bad place when they die because God and their mommies will not love them anymore. (OK I'm paraphrasing a bit. But to the extent that this concept comes up at all in jury selection, it is villainized and made very clear that it's a no-no.)

    ? (this is a question. Had to put it somewhere, didn't I?)

    I submit that it is not possible to be fairly tried of breaking an unjust law if there is no option for the jury to recognize the law as unjust.

    The jury is the ONLY way for this poor individual to get relief.

    (Sure, there's appeal. But that takes time and it is iffy, as the courts can be slow to recognize an unjust law. If that happens, there's time in jail, possibly a lot of time, before the grievance can be redressed.)

    Further, I would ask:

    ------1) Why can the judge not overturn an acquittal? (Yes, yes, I know. Double jeopardy. But what is the point of double jeopardy? That if the jury acquits, that's FINAL.)
    ------2) Why the reluctance to inquire as to the reasons a particular verdict was returned? (Because it's a can of worms that NO ONE wants to open. Does anyone want EVERY acquittal questioned with an eye towards overturning? Where would it end??)
    ------3) Why have a jury at all? If the only purpose is to rubber stamp what the judge says is the law, then there must be more efficient ways to evaluate whether the evidence supports the charges or not. Professional jurors? Or just let the judge do it.
    ------4) Why is a defendant guaranteed a trial by a jury of his peers? Surely they did not mean to suggest that one's peers are the best legal minds regarding each specific case. Certainly it's not because one's peers are more knowledgeable about the crime's one might break. Surely it's not that one's peers are more discerning of the subtleties of evidence, or the veracity of witnesses for and against one.

    I believe that the sole reason a defendant is guaranteed a trial by a jury OF HIS PEERS is because peers are more likely to understand any inherent injustices involved.

    Remember, the Founding Fathers were working from experiences of institutionalized injustice, where the king could decide you needed to provide room and board for his troop in your own house, where there were no protections on free speech, or assembly, or against unreasonable search and seizure, or arrest without charges or without representation, etc. These were realities for those guys and that's why the Bill of Rights ended up in the Constitution in the first place.

    I believe that the concept of jury nullification is embodied within the 6th Amendment in the phrase 'of his peers'.

    So, my stand is that the Right to a Fair Trial is more enhanced than diminished by the power of jury nullification.

    Yes, that means that sometimes people will go free who have broken just laws. That also happens because of civil rights violations and is generally considered a necessary evil in order to protect the rights of everyone.

    Yes, that also means that a jury can find someone guilty in the face of the evidence. Another necessary evil, for which there are some safeguards already in place, such as appeal and the powers of a judge to sentence and, I believe, in some cases modify an incorrect guilty verdict. (Sorry, not sure of the specific legalities here, but in my limited understanding, the judge has more leeway with a guilty verdict than with an acquittal.)

    So, in conclusion, my analysis is that the 6th amendment trumps case law and local statute, and I feel the Supreme Court will back me up on this. One day. Eventually.

     

    reply to this | link to this | view in chronology ]

    •  
      identicon
      Anonymous Coward, Feb 11th, 2011 @ 2:00am

      Re: Right to a fair trial

      Well, here I am to debunk my own post. I'm afraid I have to eat some crow now.

      The phrase "trial by a jury of his peers" has become so ingrained that I misremembered that it does not actually appear in the 6th amendment. Imagine my shock at re-reading the amendment and finding it missing!

      I stand by my argument in every particular, except where I reference this phrase as belonging to the 6th amendment. And I still believe that notion was included in the intent of the right to a trial by jury in criminal cases. Alas, the wording of the actual amendment does not echo this thought as clearly as "by a jury of his peers'.

      As Asimov was wont to say, it was such a clever idea, it should have been correct.

      Apologies to all for my arrogance. I should have double checked the actual text rather than relying on my imperfect memory and thereby weakening by association what I still consider to be several valid points.

       

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  •  
    icon
    Overcast (profile), Jan 13th, 2012 @ 6:36am

    Of course the legal system doesn't want us actually knowing the laws - it makes it harder for them to screw us.

     

    reply to this | link to this | view in chronology ]


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