A Stitch in Haste

Back in December I wrote a piece on whether we should consider moving to a system of professional jurors.

Yesterday, jury specialist Clay Conrad, host of the specialty blawg jurygeek, has a lengthy and thoughtful reponse opposing the idea. Which is fine, because I was merely positing the topic, not arguing strongly in favor of it.

It's a good post, with some good "original intent" background for those who are into that sort of thing. I do feel, however, that Conrad's case is somewhat circular and argumentative (i.e., professional jurors would be bad because they would be professional jurors, which is bad).

I also have a few minor quibbles in the comments section at his blog.

For run-of-the-mill offenses, I'm rather uninterested in the topic. But I do believe that for certain specialized cases, such as antitrust or securities law, the idea of professional juries should not be dismissed out of hand. Perhaps even all civil trials could be heard by professional juries, leaving criminal trials to the traditional lay jury.

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Also, for those more interested in the topic than I, Clay is soliciting for co-bloggers at jurygeek.

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On the topic of jury nullification, I'm against it. The subject has resurfaced in light of a recent Radley Balko column. I refer readers to this response by Patterico (by way of Pejmanesque) and endorse it as my own.

A juror takes an oath to apply the laws faithfully. If she can't do that, then she has no business serving on a jury in the first place. The idea of people swearing false oaths to engage in what really is form of vigilante justice gives me serious pause.

Consider the conscientious objector analogy. Think what you want about those who avoid a draft, but there is no excuse, none whatsoever, for enlisting and then suddenly, while on active duty, saying "I'll serve, but I won't go to Iraq."

(Some might respond that a solidier is not required to obey an unlawful order, but that is not a valid comparsion — a soldier who disobeys a lawful order with which he disagrees still gets court-martialed. That is the better analogy to the juror who reneges on his jury oath.)

Also, if we endorse the idea of juror nullification, then why not endorse the idea of politician nullification? The two most famous (infamous?) examples were not good ones: President and Indian slaughterer Andrew Jackson's famous (supposed) retort to the Supreme Court over what would later be known as the Trail of Tears: "John Marshall has made his decision, now let him enforce it!"

The second was of course Ole Miss and related incidents.

These are not legacies which libertarians should embrace, yet they are the same reasoning behind jury nullification.