A Stitch in Haste

WindyPundit weighs in:

Unless you are truly devoid of moral reasoning, there must be some level of unjustness at which you will abandon the law to avoid complicity in unconscionable evil.

One of the things I wanted to add to my podcast on jury nullification, but didn't have time for, was to note that if, through no subterfuge of my own (i.e., I did not lie my way onto the jury), I suddenly found myself serving as a juror and witnessing a manifestly unjust prosecution (which would more likely involve wrongful conduct by the prosecutor or judge than a "bad law"), then I might very well vote to nullify the trial. But that is an altogether different question from traditional jury nullification of a law.

But I found myself unable to devise a fact pattern where I could end up on a jury, after voir dire by competent lawyers and judges, in which a law I oppose to the point of wanting to nullify it was at issue. They would find me out before the trial started -- as is their prerogative, indeed their solemn duty.

Then again, if I could devise such a "reluctant juror" fact pattern, I'd be John Grisham or Reginald Rose.

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Meanwhile, no third solution has a comprehensive post in response to my nullification podcast. While he makes some perfectly reasonable points, I don't think he adequately addresses (or, if you prefer, he underweights) two key issues:

1. That libertarians do not have a monopoly on nullification, and therefore the maneuver is not intrinsically libertarian. Just as a gun can be used either for libertarian or anti-libertarian purposes, so too can nullification. It is therefore invalid for libertarians to claim a unique moral proprietorship of the act, as they so often do.

2. The simple truth remains that lying your way onto a jury is not the moral high ground. "The ends justify the means" was, last time I checked, simply not a core libertarian premise -- quite the opposite, in fact.

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Whether lying your way onto a jury can also constitute perjury is an utterly ancillary, jurisdiction-specific question that I feel no need to address. As for the question of whether advocating jury nullification can be a criminal act: of course not -- See Brandenburg v. Ohio, 395 U.S. 444 (1969).