John,
As if it weren't bad enough that my Yahoo groups are getting turned
off ("bouncing") repeatedly so that I have to go here to the site and
post (I hate that), NOW I have to try to figure out your posting
style below. I am absolutely confused over what is your post and what
is Conrad's. Are YOU the one asserting that most people know about
jury nullification, or is Conrad? Earlier, the position looked like
yours, but now you have it looking like Conrad's. Please clarify.
-Mark Robert
------------
--- In [email protected], Jon Roland <[EMAIL PROTECTED]>
wrote:
>
> Mark Robert wrote:
> > I have not seen any of those shows, so I can not comment. Do you
have anything
> > else to support your statement that "most jurors today already
know" the
> > FIJA-type nullification information? When I explain it, hardly
anyone already
> > "knew". Besides, if that's true, then isn't FIJA obsolete?
>
> Clay Conrad, former chairman of FIJA, quoted below, pointed out
that polls were
> conducted that "indicate that most people are unaware of their
nullification
> prerogative. Dr. David Brody did two surveys, one of college
students (generally,
> one would think, a well educated group compared to the general
public) and of the
> general public. In both surveys, the majority of respondents
believed jurors
> could be punished for their verdicts, and that the judge can
reverse a jury
> acquittal."
>
> That does not accord with my informal questioning of people, but I
was mainly
> questioning older, middle class persons of the kind that tend to be
called for
> jury service, and it depends on how the poll question is posed. I
would qualify my
> comment that most people "know" at an intellectual level, if asked
the right way,
> but that most of those are unsure of what they "know", and easily
led away from it
> by their tendency to herd behavior. So as a practical matter, there
are not a lot
> of people who are sure enough to stand alone against the pack, and
that makes the
> difference. Again, that is also what arguing the law in the
presence of the jury
> would do most to correct. Jurors need something, some argument or
fact, to seize
> upon to build a position that opposes the herd. More than that, it
needs to be
> repeated and reinforced by more argument and fact, such that other
jurors can also
> pick up on them, until together they move away from the herd
behavior the
> prosecution and judge are trying to manipulate.
>
> The key point is that it is not enough to just inform the jury they
have the right
> and power to "judge the law". That is a small step in the right
direction, but so
> small that even if it were spread widely, it would disappoint
people in the FIJA
> movement.
>
> Note that Conrad is *former* chairman. It is statements like those
below that lost
> him the support of other FIJA activists. Judge for yourself.
>
> Mark Robert wrote:
> > I agree that the jury's default prejudice is against the
defendant, but I don't
> > think jury nullification is their intent when they vote with their
> > pro-prosecution bias to convict. I think many jurors are
intimidated by
> > gov/prosecution power largely because they are ignorant of their
power to
> > thwart it. Therefore, they are afraid of repercussions if they
vote their
> > conscience to acquit, especially if they vote un-unanimous, and
> > super-especially if they vote to ignore the facts and refute the
law. I suppose
> > technically, "jury nullification" would mean voting any way that
is not
> > perfectly aligned with the facts and the law (just like "drug-law
reform" would
> > technically mean any change in drug laws). But usually, it means
a verdict that
> > is not aligned with the prosecution's evidence. Unless you are
talking about an
> > extremely rare VIP case, I don't think many jurors are afraid of
repercussions
> > coming from the defense if they vote guilty. The message that
desperately needs
> > publicity is that it is ok to vote "not guilty" without fearing
repercussions
> > from the state (and other members of the "guilty"-voting jury),
no matter the
> > amount of hard evidence. And that only needs to reach one out of
every 12
> > jurors. Is that not the message of FIJA?
> >
> > Obviously, jury-nullification information does not need to
include advice that
> > it's ok to convict based on little evidence. As you imply, there
is no shortage
> > of that or need for more of it. Unless I am wrong, the whole
message of FIJA is
> > the opposite.
> >
> > Are you truly worried that promoting FIJA-type nullification
information will
> > increase convictions? That is surely not its intent, and I don't
believe its
> > effect - any more than "drug-law reform" increases harsher drug
laws.
> >
> > And you didn't address my point that even were law to be argued
in front of the
> > jury, and the law found to be unconstitutional, it would still be
law. And a
> > not-guilty nullification would still be warranted. I believe you
are still
> > arguing FOR FIJA-type jury nullification; you just want to educate
> > constitutionally-ignorant jurors first. (But haven't
constitutional issues also
> > been aired on plenty of TV shows?)
>
> Well, a statute that is not constitutional is not law, no matter
how much it
> might be enforced, and no matter how many courts might proclaim
otherwise. But
> juries don't repeal statutes they vote not to enforce, any more
than the bench
> does when it declares the statute unconstitutional. They are still
on the books,
> and still can be enforced. But if enough courts or juries refuse to
enforce enough
> attempts to enforce it, sooner or later prosecutors will give up
and it will
> become a dead letter.
>
> >
> > I'm all for education, but not at the exclusion of nullification.
> >
> > -Mark
>
>
>
> Clay Conrad <[EMAIL PROTECTED]> wrote:
> > Jon again makes it up as he goes along - and misses the mark.
> >
> > The fact is that most jurors today already know about "jury
nullification".
> > They already know they can "vote their conscience" in defiance of
the
> > instructions of the bench concerning what the law is. The idea
has been
> > abundantly presented in the media for more than a decade. Anyone
who has caught
> > episodes of /Ally McBeal/, /The Practice/, /Boston Legal/, /Law &
Order/, or a
> > host of other such programs that have discussed the idea during
the episode,
> > have already been "informed" to the extent that an instruction to
the jury or a
> > general public education campaign could do it.
> >
> >
> > The only surveys I know of that have been done on this topic
indicate the exact
> > opposite: they indicate that most people are unaware of their
nullification
> > prerogative. Dr. David Brody did two surveys, one of college
students
> > (generally, one would think, a well educated group compared to
the general
> > public) and of the general public. In both surveys, the majority
of
> > respondents believed jurors could be punished for their verdicts,
and that the
> > judge can reverse a jury acquittal. Jon goes by what he THINKS
the answer
> > SHOULD be, and assumes it is correct, but the empirical studies
indicate the
> > exact opposite is the truth.
> >
> >
> >
> >
> >
> >
> > That isn't enough. Most jurors come to court with a pro-
prosecution bias. "If
> > he isn't guilty they wouldn't be prosecuting him." Most
prosecutions succeed by
> > presenting the accused as a "bad guy", often on the basis of
actions that have
> > nothing to do with the charge, and the jury becomes willing to
convict him of
> > the crime of "wreaking", which sounds like something bad, and
since he's a bad
> > guy, he must be guilty of it, whatever it is. I know a lot of
people who have
> > been convicted of non-existent crimes. (Ed Heimlich was convicted
of stealing
> > his own money, for example.)
> >
> >
> >
> > That isn't an accurate description of what Heimlich was convicted
of. However,
> > it is true that most jurors are biased towards the gummint. We
are not a
> > skeptical society; haven't been for at least since WWI.
> >
> >
> >
> >
> > Why do most tax protesters get convicted? Some of them do manage
to get across
> > to the jury that they sincerely believe there is no law that
requires them to
> > file or pay taxes. But that isn't enough. Most of the jurors just
reason, "I
> > don't care if the income tax is unconstitutional. They can put
you in jail if
> > you don't pay it, and I paid to stay out of jail, so if I had to,
I'm not going
> > to let him get away with not doing it."
> >
> >
> > Nope. Most jurors believe that the defendants either are not
sincere, and that
> > their beliefs are opportunistic, unreasonable, and contrived. The
real question
> > is the sincerity of these beliefs, and merely CLAIMING them
doesn't make them
> > sincerely held. Most tax protesters come across as manipulative,
arrogant and
> > sneaky; this dooms their cases. Very few come across as humble
dupes who are
> > trying to obey the law (instead of to find a way around it.)
Accordingly, they
> > get convicted.
> >
> >
> >
> >
> > Why do most federal drug prosecutions succeed? Even if the
accused somehow gets
> > it across to the jury that the U.S. statute under which he is
charged is
> > unconstitutional, they just reason, "He's a bad guy. What
difference does it
> > make whether the feds or the state locks him up? The important
thing is to get
> > him off the streets."
> >
> >
> >
> > Nope. Most people believe that drugs are bad and that drug
dealers and users
> > belong in prison or in coerced "treatment." Moreover, the claim
that the drug
> > laws are unconstitutional may sound pretty, but to believe that
most jurors
> > think the drug laws are unconstitutional is delusional.
> >
> >
> >
> >
> >
> > These cases are examples of what I mean by "voting one's
conscience" operating
> > to produce an unjust verdict, as a matter of constitutional law,
as originally
> > understood. The kind of lesson in law the jurors need is much,
much deeper and
> > more detailed than any simple notion of "conscience" can handle.
The jury has
> > to be made to understand, against their prejudices, not only that
a charge is
> > unlawful, but why that is important. That is typically a matter
of days of
> > legal argument, extensive briefs, and hours studying in a law
library. There is
> > no way a single, simple instruction or public information.
Ideally, our public
> > schools would give everyone the equivalent of at least one year
of law school,
> > but that isn't going to happen. The fact is, if jurors don't
learn the law of
> > the case while they are empaneled, they never will. And, for that
matter,
> > neither will judges, or the attorneys, or the press, or public
observers, or
> > anyone else.
> >
> >
> >
> > Fantasy land. People who aren't involved in law professionally
are not likely
> > to study it in large numbers to the extent Jon imagines. Won't
happen. So
> > let's try to get the best results out of reality, shall we?
> >
> > Clay S. Conrad www.jurygeek.blogspot.com
<http://www.jurygeek.blogspot.com>
> >
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