From the FIJA list. -------- Original Message -------- Subject: Re: [FIJA] Re: : Model Code of Judicial Conduct: Public Comment Date: Sun, 29 Jan 2006 12:24:23 -0600 From: Jon Roland <[EMAIL PROTECTED]> Reply-To: [EMAIL PROTECTED] Organization: Constitution Society To: [EMAIL PROTECTED] References: <[EMAIL PROTECTED]>
If the comments of Clay Conrad below are an attempt to criticize my position, then they are a misunderstanding or misrepresentation of it. I will explain in greater detail. First, jurors are officers of the court. Anyone who takes an oath to perform duties in a court is an officer of the court. "all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution:" U.S. Const. Art. VI Cl. 3. That includes jurors. That means their duty to render a just verdict begins with the duty to support the U.S. Constitution, and at the state level, to also support the state constitution, if it does not conflict with the U.S. Constitution. All violations of the constitutional rights of the defendant in a case, or, for that matter, of a plaintiff in a case (because juries are also for civil trials), are instances of injustice that it is the first and most important duty of jurors to protect against. Unconstitutional is always unjust, but constitutional actions can also be unjust. I do hold that most of the more important and most neglected ways injustice occurs in a court are violations of law, including of the constitution as supreme law. I have also discussed charges that are not authorized by a statute, even though the statute might be constitutional, at least if applied as originally understood when it was enacted. Injustice that is not unlawful falls into the category of abuse of discretion, and while abuse of discretion can be or become systematic and emerge as a pattern that affects large numbers of people, the violations of law are more important because if not checked, they can become the basis for the usurpation by government officials of powers never delegated to them, and such usurpation is a greater threat in the long run to a larger number of people. Usurpation builds on usurpation until it become rampant tyranny. Checking abuses of discretion in particular cases is also important, but it does not carry the larger significance of allowing violations of law, and especially of the constitution, to proceed without opposition. Now some might contend that, statistically, instances of injustice that are not unconstitutional are more numerous and more common in state courts (as distinct from federal), and that therefore the focus on reform activity should be on getting jurors to apply their "natural" or "innate" "sense of justice" to correcting this, leaving injustice that is also a violation of law to later efforts. For this purpose, arguing the law in the presence of the jury is not essential, and therefore should not be the main goal of jury reform. I disagree with that argument, for several reasons. To understand this point, let us consider what Justice Sandra Day O'Connor says in her recent book, /The Majesty of the Law/, p. 221: "...jurors should be given general instructions on the applicable law /before/ the case begins. How are they to make sense of the evidence and the mass of information that the parties will put before them, unless they know in advance what they are looking for? ... Unless they are given proper frames of reference at the /beginning/ of a case, jurors are likely either to be overwhelmed by a mass of information they are incapable of organizing, or to devise their own frames of reference, which may well be inconsistent with those the law requires." I carry this exhortation a step further, recognizing that the bench cannot be relied upon to provide such early instruction, either competently or in an unbiased manner. By necessity it can be provided only by the litigants or their attorneys, in legal argument as the trial proceeds, both to the bench and to the jury, as well as to the spectators and other court personnel. Without the arguments of law, from both sides (or perhaps also from amici curiae or intervenors), jurors are unlikely to be able to frame their thinking about either the legal issues affecting justice, such as constitutionality, or the extralegal issues, such as injustice that is within the bounds of lawfulness in a strict legalistic sense. To reach a just verdict on either legal or extralegal issues, the jury must hear all the same arguments on law the bench does, except on admission of prosecution evidence, which it is reasonable the bench alone should be able to hear. [EMAIL PROTECTED] wrote: > Where you err is that FIJA isn't about telling jurors they can nullify > "unconstitutional" charges, but that they can acquit in the interest of > justice. The idea that "unconstitutional" = "unjust" is fallacious. > Many injustices may be perfectly constitutional. Still, the jury has > the right to say "not in my name." > > A juror could always nullify because they believe a law violates their > understanding of the constitution. But they are equally so empowered if > they merely think the law is unjust, unwise, the accused has already > suffered enough, the circumstances provide a moral justification that > the law does not but should recognize, etc. > > The idea of constraining a juror's discretion to constitutional decision > making is unwise, and to my mind, simply silly. > > Allowing jurors to be so informed would be a procedural reform. Yahoo! Groups Links -- ---------------------------------------------------------------- Our efforts depend on donations from people like you. 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