A Stitch in Haste

I remain befuddled over the libertarian obsession with jury nullification. If we're not supposed to like concentrating power in a few people, then why are we supposed to like concentrating it in a single lay juror?

Stated differently, a holdout juror is just as likely to obstruct justice as to preserve it (WSJ - $) --

A lone holdout on the jury stood between Merck & Co. and what would have been a crucial second Vioxx-trial victory when the U.S. federal judge overseeing the case abruptly ruled it a mistrial, jurors said.
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According to one juror, the holdout wasn't swayed by the majority's argument. "Basically the sticking point was the marketing" of Vioxx, this juror said. "There was just folding of the arms and rolling of the eyes and not listening," and saying that "the marketing was inappropriate and that kind of thing," the juror added.

Some of my previous COX-2 posts are here and here and here. My point in this post is merely to highlight that, in my opinion, there is no robust moral distinction between declaring, "I refuse to convict this defendant because I and I alone believe the law to be unjust..." and "I refuse to deny this plaintiff damages because I and I alone believe the law to be unjust..."

I don't think it matters that one involves criminal law and the other involves civil law. I don't think it matters that one involves disregarding the law to help a sympathetic defendant while the other involves disregarding the law to help a sympathetic plaintiff.

The forum for fighting unjust laws is in legislatures and in judges' chambers, not jury rooms.

I see no reason for preferring being at the mercy of a renegade juror than a renegade politician or judge.

Unlike many libertarians, I have never bought into the concept of jury nullification. I actually think it is a most unlibertarian concept, for several reasons:

--In most if not all settings, jurors swear an oath to uphold and apply the law and to follow the judge's instructions. If you can't in good conscience uphold a particular law, then the right time to demonstrate the inviolability of your principles is during the voir dire.

--Libertarians abhor the concentration of power. How can they then sanction the ultimate concentration of power -- a unilateral veto power -- in a single unelected individual?

--Nullification works both ways. It is just as easy for a lone "law and order" or "ends justify means" juror to vote to convict someone who is in fact innocent. A civil trial analogue occurred here. Eleven-to-one to acquit is still a hung jury, just like eleven-to-one to convict.*

In any case, it now appears that the capital phase of the Zacarias Moussaoui trial was itself a case of jury nullification. One of the three votes was 11-1 to execute (the others were both 10-2; any single 12-0 would have meant execution).

So I'll put it out for an open thread — do you pro-nullification libertarians still support the concept despite the Moussaoui verdict? Should an advocate of "no capital punishment, ever" be allowed to sit on a capital jury in the first place? If jury nullification is ever warranted, then where is the line to be drawn and how is it to be enforced? I find these questions to be so metaphysically unanswerable as to, well, nullify the questions a priori.

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*Most of the time. Unanimous jury verdicts are not a Sixth Amendment requirement. Neither are 12-person juries, or juries at all for that matter (under current case law).

Are we still pretending that jury nullification is a legitimate libertarian issue?

Patterico's "gotcha" question on the issue concerns the oath many courts require jurors to take before serving, which affirms that they will uphold the law. Patterico asks supporters of nullification if they'd risk perjury charges by taking that oath and then subverting an unjust law during deliberations.

It's a difficult question, and one I think people interested in real justice need to reconcile with their own values and priorities. But I also think his question is pretty revealing. It shows how prosecutors and judges have tweaked juror oaths to set perjury traps for would-be nullifiers, thus taking out of play an important check against bad laws, bad judges, and bad prosecutors. I'd like to see a civil liberties group mount a challenge to those oaths.

Oh my goodness.

Even if Balko's bizarre argument (i.e., that juror oaths are some sort of vast right-, um, left-, um, judge-wing conspiracy to oppress libertarians) had any basis in reality, it would still be a moot point.

It is precisely jury nullification — not the attempt to quash it — that is a radically un-libertarian concept. Libertarians are supposed to oppose the concentration of power in the few — or the one — and to oppose attempts within the government — of which the jury system is a part — to circumvent the rule of law. What kind of libertarian proposes a dictatorship, even a fleeting and minuscule one, as a guarantor of freedom?

But put even that aside. There's a still more primal reason why libertarians should fear, and not praise, jury nullification: the simple fact that it is symmetrical. It can be used as a sword of injustice just as easily — maybe more easily — than as a shield against it.

Unanimity — and nullification — cuts both ways. Suppose you have a defendant who is indeed not guilty, perhaps of any crime at all or perhaps of only a lesser crime and not a more severe crime with which he has also been charged. And suppose 11 of the jurors see this, but one does not — and he votes, in violation of both justice and his oath, to convict — to nullify.

Maybe the juror is a racist and is voting based on that. Maybe he is elderly and biased against "young punks." Maybe he was the past victim of a crime and lied his way onto the jury to vicariously "get even" with a criminal, any criminal. Or maybe the defendant is a career criminal and the renegade juror figures that, whatever the law, the defendant "ought" to be punished more than he already has been.

Or perhaps it's a civil trial against the big bad (oh, and greedy) pharmaceutical company and its big bad (oh, and FDA-approved) drug. Perhaps the juror will figure that liability laws are "oppressive" (i.e., to the plaintiff) or that it's "no big deal" if the rich and impersonal corporate defendant is forced to pay.

All examples of jury nullification. All functionally equivalent to the "pure and clean" libertarian model of nullification. And all should strike fear in the heart of any real libertarian.

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Meanwhile, I sincerely hope that laypersons don't believe that "11 to convict, 1 to acquit" means acquittal, or that "5 for plaintiff, 1 for defendant" means no liability.

Perhaps advocates of nullification simply don't understand the nature of a jury trial. In all federal trials (both criminal and civil), and in almost all the states, a jury trial must be unanimous. No controversy there (except for the "almost" part — see the absurd reasoning and fractured outcome of Apodaca v. Oregon, 406 U.S. 404 (1972), exempting the states from the unanimity requirement, a "privilege" that 45 states have wisely foregone in criminal trials).

So a lone (i.e., perjurious, renegade) juror is in reality not "nullifying" anything. "Eleven to convict, one to acquit" does not mean an acquittal. It means a hung jury, a do-over. Even as a purported "act of conscience" (and since when is perjury an act of conscience?), what's the point? The guilty defendant will, most likely, simply be retried and convicted later. And all the same symmetry arguments apply here as well. Imagine being an innocent defendant and having to suffer the nightmare — and the cost — of a hung jury because of one renegade juror.

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All good libertarians are familiar with the phrase "fatal conceit." It's a close cousin to Kip's Law. It is the hubris, the irrational arrogance, to presume that the world would be perfectly hunky-dory if only you ran things and if only everyone would behave as you want them to behave.

The presumption that jury nullification would only be used as a force for good, and that "two wrongs make a right" for you, because you, unlike everyone around you, are pure and noble and just, is exactly the kind of pomposity that libertarians are supposed to abhor.

Go figure (and try to be unanimous about it).

I am on record as refusing to drink the libertarian Kool-Aid when it comes to jury nullification. It makes no sense to me, qua libertarian, to oppose the concentration of power by government in defiance of the rule of law, only to then support the concentration of power in defiance of the rule of law in yourself as a juror. Furthermore, in most if not all all cases a potential juror must lie, indeed perjure herself, to get on a jury if she presumes, a priori, to be entitled to commit nullification. That's not my definition of libertarian ethics. And a nullifier does not set a defendant free, but merely creates a hung jury, which may result in a dropping of charges but will usually just result in another trial -- not a costless proposition for the system, the other jurors or their counterparts in the re-trial.

But there is, as I have noted before, another reason for libertarians to advocate keeping jurors on a short leash: The simple fact that nullification can cut both ways:

The People contended that a substantial quantity of marijuana that had been found near, not in, the defendant's apartment had been in the possession of the defendant. The People's case had holes you could drive a truck through.
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Just over an hour into the deliberations we took a vote -- 11 not guilty, 1 guilty.

You can probably guess the rest. The one holdout wouldn't budge, even though (after two full days of attempting to "deliberate") he was unable to explain why he was certain the defendant was guilty.
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And yes, the juror was an elderly white man, and the defendant was black (as was the prevaricating detective). Do I think racism was a factor? Hell, yes. But I suspect stupid was a factor, also -- the juror lacked the mental capacity to understand abstract concepts like "burden of proof" or even "evidence." [Emphasis in original.]

Now if you want to argue that there should be some sort of basic competency test to screen out "stupid as a factor," then so be it. But don't claim that this foolish old man doesn't have the same right to be a renegade juror as an "noble and enlightened" libertarian juror wielding nullification like a sword of indignation.

Unjust laws must be dealt with via the legislative process, coupled with potent judicial review. It may be slow, it may be imperfect. But it's the moral high ground in a way that jury nullification never can be.

(Via Unclaimed Territory.)

Boing Boing conveniently provides a link to Massachusetts' anti-Lite-Brite statute:

Whoever possesses, transports, uses or places or causes another to knowingly or unknowingly possess, transport, use or place any hoax device or hoax substance with the intent to cause anxiety, unrest, fear or personal discomfort to any person or group of persons shall be punished[.]

Boing Boing commenters know their first-year criminal law:

Most interesting is that the statute defines the crime in terms of a specific intent: "the intent to cause anxiety, unrest, fear or personal discomfort to any person or group of persons."

This specific intent will be hard to prove, beyond a reasonable doubt, in my opinion.

I think he's absolutely right — even "motion to dismiss" or "motion for directed verdict" right.

On the other hand, I could — in my dystopic paranoia — easily see this becoming a case of "reverse jury nullification," of which I have warned before. Jurors could easily "vote their conscience" (i.e., "Perhaps they didn't actually break this particular law, but I think they should be punished anyway for causing so much trouble...").

If you believe in jury nullification, then this is what you believe in.

(The defendants are also charged with disorderly conduct.)

Now available — the Stitch in Haste Podcast, Episode #002.

This week: The libertarian argument against jury nullification.

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About the Podcast:

The idea will be to record a quick commentary, no more than weekly (and typically less than weekly) and never longer than 20 minutes, either about something I don't feel like covering in a full-blown blogpost, or something that I have already covered in the blog and don't feel like revisiting. Eventually I might include responses to comments, interviews, roundtable discussions, etc.

Still undergoing some technological refinements. Please be patient.

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).

In my last post on jury nullification, I noted the following:

[I]f, 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.

This fact pattern, in reverse, is something close to what I had in mind:

Maverick Brooklyn federal Judge Jack Weinstein issued the ruling in a child-porn case over which he presided -- chastising himself for not telling the jury that the defendant faced a minimum five-year sentence before it found him guilty.

The drastic ruling says juries should be told what sentences certain criminals face, especially if the prison terms are particularly long.

It attempts to reverse the long-standing rule that jurors not be given sentencing information so they can decide guilt or innocence, without letting the potential punishment color their thinking.

This is all very wink-wink legal theater by Weinstein, who is known for making rules up as he goes along. Just as modern juries are only supposed to decide questions of fact and not to second-guess the propriety of the law itself, so too are they not supposed to consider the potential penalties a criminal defendant would face. The potential sentence a defendant may face is also part of the law and not "evidence" to be weighed by the jury.

Weinstein knows this full well -- every lawyer does. But in order to grab a headline he self-righteously decides to declare a mistrial based on a perfectly incorrect reading of the law: that every jury should always know what potential sentence a defendant faces -- or at least the most onerous sentences.

Weinstein's unprofessional antics were of course pro-defendant. But judicial or prosecutorial misconduct can also be anti-defendant. And in that instance, where I did not lie my way onto a jury, was attempting to perform my function in good faith, and was suddenly blindsided by an egregious miscarriage of justice, then -- and only then -- might I indeed choose to nullify the trial. Unlike an unjust law -- of which the defendant had or ought to have had fair knowledge beforehand -- an unjust trial is an abomination that one cannot anticipate or incorporate into one's decision-making calculus. It is outside the system of justice in a way that an unjust law is not. It is a different, and more malignant, kind of governmental abuse.

When one party breaches a contract, the other party is typically not required to continue performing his end of the bargain. The first breach destroys the contract itself and therefore all subsequent duties under the contract. To the extent that a trial is a "judicial compact," and given a precedent breach of that compact by the judge or prosecutor, the duty of the juror to honor the compact terminates, and no juror has any ethical obligation to fulfill any original duty under the original judicial compact.

The case is U.S. v. Polizzi, No. 06-CR-22 (E.D.N.Y, April 1, 2008) (PDF - 288 pages)

(Via Sentencing Law & Policy.)

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Meanwhile:

In a legal victory for the tobacco industry, a federal appeals court on Thursday threw out an $800 billion class-action lawsuit on behalf of smokers who said they were misled that light cigarettes were safer than regular ones.

Plaintiffs' lawyers had wanted to represent potentially millions of people across the country who had smoked light cigarettes, but the court found that it was impossible to tell why smokers chose light cigarettes, so the group could not be treated as a class. Instead, smokers will have to sue individually.

"Individualized proof is needed to overcome the possibility that a member of the purported class purchased lights for some other reason than the belief that lights were a healthier alternative," the ruling said.

Of course, every second-year law student knows that "commonality" is a requirement for certification of a class in a federal lawsuit.

Guess who didn't know it -- or didn't care:

The court decision was a setback for lawyers who thought that the ruling approving the class, issued by Federal District Judge Jack B. Weinstein in Brooklyn in September 2006, could have opened a new avenue for litigation against the tobacco industry, exposing cigarette companies to potentially large damages.

I don't believe in "activist judges." But there certainly is such a thing as a rogue judge. Better to be correct in two pages than wrong in 288 pages. Better to apply uncomplicated and well-settled principles of federal civil procedure correctly than to grab a gratuitous headline at the expense of an industry that sells a legal product.

At least the Second Circuit knows when it's proper to nullify.

Question for the nullifiers: At least one state forbids the use of the so-called "gay panic defense." Should a nullifier be entitled to disregard that prohibition and vote to acquit a gay-basher in defiance of both the law and the jury instructions?

By the way, this is not entirely a hypothetical:

Students have said they witnessed confrontations between [Lawrence] King and [Brandon] McInerney in the weeks or days before the shooting, including King's teasing McInerney and telling him that he liked him.

McInerney perceived King's treatment as harassment, [Public Defender William] Quest said. ... Quest said he believes school administrators supported one student expressing himself and his sexuality — King — and ignored how it affected other kids, despite complaints. Cross-dressing isn't a normal thing in adult environments, he said, yet 12-, 13- and 14-year-olds were expected to just accept it and go on.

Besides the fact that King was in fact not cross-dressing at school, there are many aspects of this tragedy that make it a poor fact pattern for analyzing any one particular legal issue. Point conceded.

But having said that:

A.B. 1160 declares that it is against public policy for a defendant to play upon the bias of the jury, or for a jury to allow bias against the victim to enter into its decision-making.

The bill revises the current California jury instruction regarding bias, to make clear to jurors that their verdict cannot be based on bias against the victim, defendant or witnesses.
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A.B. 1160 was introduced in response to recent cases in California in which murder defendants have tried to lessen the charges against them by arguing that they acted in a panic after discovering that the victim was gay or transgender.

So I put it again to the nullifiers: Assume a juror, who acted in good faith and made no attempt to lie her way onto the jury, simply believes that "panic" is indeed an entirely proper reaction when "harassed" by a "pervert" and that, A.B. 1160 and jury instructions notwithstanding, it's just not right for someone to go to jail for killing an uppity queer who "panicked" him.

If the power of a juror is absolute and extends not just to reviewing the facts but also the law, then is it not also perfectly appropriate, even noble, for one homophobe to acquit another homophobe?

Or do your "higher principles" regarding nullification only apply to smoking pot?

(Via Box Turtle Bulletin. no third solution offers a reply.)

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Previous Lawrence King posts starting here. Another ongoing gay panic trial here.