Jury Nullification goes to Trial?

I am willing to bet that if the case goes to trial the court will rule that the defense cannot talk about what jury nullification at all.

My bet that even if the defense was allowed to mention jury nullification anytime it wanted juries would still routine convict people. The government is afraid of nullification not because it will be misused, but because it takes away their power.

The charge is jury tampering for the "conduct" or the "behavior" of discussing -- jury nullification.

How could the case EVER go to trial without the EVIDENCE thus consisting of that VERY speech? The CENTERPIECE of the CASE itself would be a discussion of how talking about "jury nullification" could constitute "jury tampering." How could the jury decide the case unless they heard WHAT IT WAS that the defendant said that allegedly constitutes "jury tampering?"

No.

If the case went to trial before a jury, the jury would hear a SHIT LOAD about jury nullification. No way around it.

Not sure, but I can guarantee that the prosecution will be trying to keep the defense from using it, and the judge will do every bit of legal gymnastics he can to help them do so.

It would be like trying one of the old time "pornography" cases without having the jury see the motion picture in question or the glossy magazine photographs in question. Actually, even that is do-able. For in THOSE cases you COULD (theoretically at least) have a witness describe the images verbally.

But in the "jury tampering" case, how could anybody "describe" the allegedly criminal words of the defendant without thereby (in the very same breath) describing the whole notion of "jury nullification." Those ARE the words in question. They are the gravamen of the criminal accusation.

If the jury can't read what the defendant wrote (jury nullification pamphlet) or hear WHAT he said (quotes about jury nullification) what possible basis could they have to decide one way or the other if he's guilty of tampering with a jury?

I maintain it is facially impossible.

And interestingly enough, it would LEAD to other significant dilemmas for the prosecution. One such possibility is that the prosecutor would find himself (or herself) having to decide if he HAD to ask the judge for legal instructions for the benefit of the jury's deliberations ALL ABOUT how the law forbids "jury nullification." That's right. It is possible that a prosecutor MIGHT feel compelled to ask for some legal charge on the very topic he claims is criminal when spoken by the defendant.
 
The charge is jury tampering for the "conduct" or the "behavior" of discussing -- jury nullification.

How could the case EVER go to trial without the EVIDENCE thus consisting of that VERY speech? The CENTERPIECE of the CASE itself would be a discussion of how talking about "jury nullification" could constitute "jury tampering." How could the jury decide the case unless they heard WHAT IT WAS that the defendant said that allegedly constitutes "jury tampering?"

No.

If the case went to trial before a jury, the jury would hear a SHIT LOAD about jury nullification. No way around it.

Not sure, but I can guarantee that the prosecution will be trying to keep the defense from using it, and the judge will do every bit of legal gymnastics he can to help them do so.

It would be like trying one of the old time "pornography" cases without having the jury see the motion picture in question or the glossy magazine photographs in question. Actually, even that is do-able. For in THOSE cases you COULD (theoretically at least) have a witness describe the images verbally.

But in the "jury tampering" case, how could anybody "describe" the allegedly criminal words of the defendant without thereby (in the very same breath) describing the whole notion of "jury nullification." Those ARE the words in question. They are the gravamen of the criminal accusation.

If the jury can't read what the defendant wrote (jury nullification pamphlet) or hear WHAT he said (quotes about jury nullification) what possible basis could they have to decide one way or the other if he's guilty of tampering with a jury?

I maintain it is facially impossible.

And interestingly enough, it would LEAD to other significant dilemmas for the prosecution. One such possibility is that the prosecutor would find himself (or herself) having to decide if he HAD to ask the judge for legal instructions for the benefit of the jury's deliberations ALL ABOUT how the law forbids "jury nullification." That's right. It is possible that a prosecutor MIGHT feel compelled to ask for some legal charge on the very topic he claims is criminal when spoken by the defendant.

Federal prosecutors have a lot of discretion, and more power than most people realize. His probable plan is to issue subpoenas, harrass, and threaten in the hope that they guy will take a plea bargain.
 
I am ambivalent on this.

Jurors are to say what the facts were. :: The judge is supposed to say what the law is.

Jurors swear to comply with the law. :: Judges do not say what the facts are.

But it has long been a kind of (dirty?) little secret in our system of Justice that jurors sometimes do revolt a little bit and REFUSE to apply an unjust law (or to apply a just law in an unjust manner).

But it defies logic to tell a jury that is sworn to uphold the law that they may (simultaneously) disregard a law. (I mean, what kind of legal instruction to the jury could the judge give? "You, the jury, MUST obey the law, but you may also feel free to disregard the law if you feel like it!")

I am unclear on how talking about jury nullification to a bunch of prospective jurors, however, constitutes jury tampering. That sounds kind of fishy to me. It also sounds like a possible violation of the First Amendment guarantee of freedom of speech.

Keep us informed, by all means. I'd be interested in seeing how this unfolds.

Well, I'll be damned - something you and I totally agree upon.

Imagine a defense lawyer getting up in front of a jury during closing argument and saying: "Ladies and gentlemen, as I am sure you know, you have a legal and constitutionally protected right to disregard the law that the judge has just instructed you upon. If you don't like it, you don't have to follow it. You have that right. So, even though the facts of this case show that my client is clearly guilty - I will concede that - I want you to go in there and find him guilty because this is an UNJUST AND UNFAIR LAW. Never mind what His Honor has told you about your duty to 'follow the law.' You don't have to do so if you don't agree with the law. So go in there and do your duty as you have a legal and constitutionally protected right to do."

Anyone want to guess what would happen to a defense lawyer who made such an argument to a jury?
 
I am ambivalent on this.

Jurors are to say what the facts were. :: The judge is supposed to say what the law is.

Jurors swear to comply with the law. :: Judges do not say what the facts are.

But it has long been a kind of (dirty?) little secret in our system of Justice that jurors sometimes do revolt a little bit and REFUSE to apply an unjust law (or to apply a just law in an unjust manner).

But it defies logic to tell a jury that is sworn to uphold the law that they may (simultaneously) disregard a law. (I mean, what kind of legal instruction to the jury could the judge give? "You, the jury, MUST obey the law, but you may also feel free to disregard the law if you feel like it!")

I am unclear on how talking about jury nullification to a bunch of prospective jurors, however, constitutes jury tampering. That sounds kind of fishy to me. It also sounds like a possible violation of the First Amendment guarantee of freedom of speech.

Keep us informed, by all means. I'd be interested in seeing how this unfolds.

Well, I'll be damned - something you and I totally agree upon.

Imagine a defense lawyer getting up in front of a jury during closing argument and saying: "Ladies and gentlemen, as I am sure you know, you have a legal and constitutionally protected right to disregard the law that the judge has just instructed you upon. If you don't like it, you don't have to follow it. You have that right. So, even though the facts of this case show that my client is clearly guilty - I will concede that - I want you to go in there and find him guilty because this is an UNJUST AND UNFAIR LAW. Never mind what His Honor has told you about your duty to 'follow the law.' You don't have to do so if you don't agree with the law. So go in there and do your duty as you have a legal and constitutionally protected right to do."

Anyone want to guess what would happen to a defense lawyer who made such an argument to a jury?
What? Would said attorney be accused of jury tampering?
 
I am ambivalent on this.

Jurors are to say what the facts were. :: The judge is supposed to say what the law is.

Jurors swear to comply with the law. :: Judges do not say what the facts are.

But it has long been a kind of (dirty?) little secret in our system of Justice that jurors sometimes do revolt a little bit and REFUSE to apply an unjust law (or to apply a just law in an unjust manner).

But it defies logic to tell a jury that is sworn to uphold the law that they may (simultaneously) disregard a law. (I mean, what kind of legal instruction to the jury could the judge give? "You, the jury, MUST obey the law, but you may also feel free to disregard the law if you feel like it!")

I am unclear on how talking about jury nullification to a bunch of prospective jurors, however, constitutes jury tampering. That sounds kind of fishy to me. It also sounds like a possible violation of the First Amendment guarantee of freedom of speech.

Keep us informed, by all means. I'd be interested in seeing how this unfolds.

Well, I'll be damned - something you and I totally agree upon.

Imagine a defense lawyer getting up in front of a jury during closing argument and saying: "Ladies and gentlemen, as I am sure you know, you have a legal and constitutionally protected right to disregard the law that the judge has just instructed you upon. If you don't like it, you don't have to follow it. You have that right. So, even though the facts of this case show that my client is clearly guilty - I will concede that - I want you to go in there and find him guilty because this is an UNJUST AND UNFAIR LAW. Never mind what His Honor has told you about your duty to 'follow the law.' You don't have to do so if you don't agree with the law. So go in there and do your duty as you have a legal and constitutionally protected right to do."

Anyone want to guess what would happen to a defense lawyer who made such an argument to a jury?

He would win a mistrial for his client?
 
I am ambivalent on this.

Jurors are to say what the facts were. :: The judge is supposed to say what the law is.

Jurors swear to comply with the law. :: Judges do not say what the facts are.

But it has long been a kind of (dirty?) little secret in our system of Justice that jurors sometimes do revolt a little bit and REFUSE to apply an unjust law (or to apply a just law in an unjust manner).

But it defies logic to tell a jury that is sworn to uphold the law that they may (simultaneously) disregard a law. (I mean, what kind of legal instruction to the jury could the judge give? "You, the jury, MUST obey the law, but you may also feel free to disregard the law if you feel like it!")

I am unclear on how talking about jury nullification to a bunch of prospective jurors, however, constitutes jury tampering. That sounds kind of fishy to me. It also sounds like a possible violation of the First Amendment guarantee of freedom of speech.

Keep us informed, by all means. I'd be interested in seeing how this unfolds.

Well, I'll be damned - something you and I totally agree upon.

Imagine a defense lawyer getting up in front of a jury during closing argument and saying: "Ladies and gentlemen, as I am sure you know, you have a legal and constitutionally protected right to disregard the law that the judge has just instructed you upon. If you don't like it, you don't have to follow it. You have that right. So, even though the facts of this case show that my client is clearly guilty - I will concede that - I want you to go in there and find him guilty because this is an UNJUST AND UNFAIR LAW. Never mind what His Honor has told you about your duty to 'follow the law.' You don't have to do so if you don't agree with the law. So go in there and do your duty as you have a legal and constitutionally protected right to do."

Anyone want to guess what would happen to a defense lawyer who made such an argument to a jury?

He would win a mistrial for his client?

As soon as the judge became aware of what the lawyer was trying to do, he/she would be silenced. Then, he/she would probably be found in contempt of court and sanctioned accordingly. The judge would probably also file a complaint with the state bar association.
 
As soon as the judge became aware of what the lawyer was trying to do, he/she would be silenced. Then, he/she would probably be found in contempt of court and sanctioned accordingly. The judge would probably also file a complaint with the state bar association.
Right...They'll use the constructs of the oligarchy to run the heretic out.

But they'll never ever be charged with a criminal act...Because nullification isn't illegal.
 
It's not every day I agree with George WUZ IN DA POOL Costanza. But he's right in this case. The offending lawyer would get a swift kick in the nadz taking the form of a contempt citation.
 
As soon as the judge became aware of what the lawyer was trying to do, he/she would be silenced. Then, he/she would probably be found in contempt of court and sanctioned accordingly. The judge would probably also file a complaint with the state bar association.
Right...They'll use the constructs of the oligarchy to run the heretic out.

But they'll never ever be charged with a criminal act...Because nullification isn't illegal.

It isn't illegal in the sense that you will never find a statute expressly prohibiting it. But you will find cases prohibiting it. And you will also find judges who instruct juries that they must follow the law of the case - and this includes the law defining the crime charged.

Right Wing Whackodom is FILLED with what I like to call convenient myths. These are myths that mirror what the Right would LIKE reality to be. This is one of those myths.
 
As soon as the judge became aware of what the lawyer was trying to do, he/she would be silenced. Then, he/she would probably be found in contempt of court and sanctioned accordingly. The judge would probably also file a complaint with the state bar association.
Right...They'll use the constructs of the oligarchy to run the heretic out.

But they'll never ever be charged with a criminal act...Because nullification isn't illegal.

It isn't illegal in the sense that you will never find a statute expressly prohibiting it. But you will find cases prohibiting it. And you will also find judges who instruct juries that they must follow the law of the case - and this includes the law defining the crime charged.

Right Wing Whackodom is FILLED with what I like to call convenient myths. These are myths that mirror what the Right would LIKE reality to be. This is one of those myths.

Right Wing Whackodom?

I know there are some that argue that we are a nation of laws, and that the law trumps right and wrong. I will simply point out that even if the law was handed down by God himself, which it obviously is not, it would still be administered by imperfect human beings that make mistakes. Telling any thinking person that they have to follow the law when it is obvious not only that the law is wrong, but that the person charged with breaking the law, though technically guilty, is right is something right wing hardliners would actually back.

I know that some, including you, argue that ultimately justice will prevail and people will, if wrongfully prosecuted, be freed. I can then point to the fact that people die in prison after they were railroaded by the prosecution. This does not offend my conservative side, it offends my liberal side. I will also point out that it is extremely rare for an appellate court to overturn a conviction for any reason. There has to be either a clear cut error of some type that is egregious, or the law has to be found unconstitutional. Tell me honestly, would you willing to be a test case for challenging the constitutionality of a law if someone was willing to compensate you liberally for the time you spent incarcerated during the entire process?

I will also point out that, despite years of efforts by some people, no court has ever ruled that juries do not have the power to judge the law. Current precedent holds that the judge can overrule the jury on points of law, but that is not the same as them not judging it at all.

Just because the judge does not have to inform a jury about nullification in jury instructions, as current case law states, that does not mean that defendants should not have the right to argue nullification to the jury themselves. The law is so screwed up that even if a defendant represents himself the court will refuse to let him argue nullification. Is it some sort of breach of professional ethics to allow someone who is not a lawyer to argue nullification, or is an usurpation of a persons right to represent himself?

By the way, I can easily cite numerous right wing judges, including Robert
Bork, who oppose jury nullification. this is not a partisan debate, despite the fact that militia groups have seized on this issue. I could easily point out that these same groups have also seized on free speech as a favorite issue, and I am pretty sure you do not think that is a partisan issue. Lets try to keep this debate on the merits of the issue, on not on the people who are arguing it.
 
Right...They'll use the constructs of the oligarchy to run the heretic out.

But they'll never ever be charged with a criminal act...Because nullification isn't illegal.

It isn't illegal in the sense that you will never find a statute expressly prohibiting it. But you will find cases prohibiting it. And you will also find judges who instruct juries that they must follow the law of the case - and this includes the law defining the crime charged.

Right Wing Whackodom is FILLED with what I like to call convenient myths. These are myths that mirror what the Right would LIKE reality to be. This is one of those myths.

Right Wing Whackodom?

I know there are some that argue that we are a nation of laws, and that the law trumps right and wrong. I will simply point out that even if the law was handed down by God himself, which it obviously is not, it would still be administered by imperfect human beings that make mistakes. Telling any thinking person that they have to follow the law when it is obvious not only that the law is wrong, but that the person charged with breaking the law, though technically guilty, is right is something right wing hardliners would actually back.

I know that some, including you, argue that ultimately justice will prevail and people will, if wrongfully prosecuted, be freed. I can then point to the fact that people die in prison after they were railroaded by the prosecution. This does not offend my conservative side, it offends my liberal side. I will also point out that it is extremely rare for an appellate court to overturn a conviction for any reason. There has to be either a clear cut error of some type that is egregious, or the law has to be found unconstitutional. Tell me honestly, would you willing to be a test case for challenging the constitutionality of a law if someone was willing to compensate you liberally for the time you spent incarcerated during the entire process?

I will also point out that, despite years of efforts by some people, no court has ever ruled that juries do not have the power to judge the law. Current precedent holds that the judge can overrule the jury on points of law, but that is not the same as them not judging it at all.

Just because the judge does not have to inform a jury about nullification in jury instructions, as current case law states, that does not mean that defendants should not have the right to argue nullification to the jury themselves. The law is so screwed up that even if a defendant represents himself the court will refuse to let him argue nullification. Is it some sort of breach of professional ethics to allow someone who is not a lawyer to argue nullification, or is an usurpation of a persons right to represent himself?

By the way, I can easily cite numerous right wing judges, including Robert
Bork, who oppose jury nullification. this is not a partisan debate, despite the fact that militia groups have seized on this issue. I could easily point out that these same groups have also seized on free speech as a favorite issue, and I am pretty sure you do not think that is a partisan issue. Lets try to keep this debate on the merits of the issue, on not on the people who are arguing it.

There are no "merits" to this discussion. This discussion fits right in there with the folks who argue that you legally do not have to pay income taxes.

I suspect that this argument is based upon a lack of understanding between the two sides arguing it. Yes, of course it is POSSIBLE for a juror to vote not guilty simply because he or she disagrees with the law of the case, even though the defendant is clearly guilty. But if a juror does that, he or she is disobeying the court's instructions to follow the law and so, to that extent, such action by a juror is NOT LEGAL.

What are you advocating here - that attorneys should be free to argue to juries that they can disregard the law of the case? Sounds to me like you are. Taking partisanship out of it, I call that just plain Whackodom - right or left.
 
As soon as the judge became aware of what the lawyer was trying to do, he/she would be silenced. Then, he/she would probably be found in contempt of court and sanctioned accordingly. The judge would probably also file a complaint with the state bar association.
Right...They'll use the constructs of the oligarchy to run the heretic out.

But they'll never ever be charged with a criminal act...Because nullification isn't illegal.

It isn't illegal in the sense that you will never find a statute expressly prohibiting it. But you will find cases prohibiting it. And you will also find judges who instruct juries that they must follow the law of the case - and this includes the law defining the crime charged.
Name them.
 
There are no "merits" to this discussion. This discussion fits right in there with the folks who argue that you legally do not have to pay income taxes.
Irrelevant red herring and you know it.

There are numerous tax protesters who have done hard time...You cannot name one single juror who has ever been convicted of, or even charged with, any criminal act in assuming and asserting their just, proper and lawful role in refusing to convict based upon the unjustness of the law....Not one.

I suspect that this argument is based upon a lack of understanding between the two sides arguing it. Yes, of course it is POSSIBLE for a juror to vote not guilty simply because he or she disagrees with the law of the case, even though the defendant is clearly guilty. But if a juror does that, he or she is disobeying the court's instructions to follow the law and so, to that extent, such action by a juror is NOT LEGAL.

What are you advocating here - that attorneys should be free to argue to juries that they can disregard the law of the case? Sounds to me like you are. Taking partisanship out of it, I call that just plain Whackodom - right or left.
The argument is based upon historical fact and easily found positions on the matter, by the very people who put the American judicial system in place...Which is far and away more than you have.
 
Right...They'll use the constructs of the oligarchy to run the heretic out.

But they'll never ever be charged with a criminal act...Because nullification isn't illegal.

It isn't illegal in the sense that you will never find a statute expressly prohibiting it. But you will find cases prohibiting it. And you will also find judges who instruct juries that they must follow the law of the case - and this includes the law defining the crime charged.
Name them.

For starters?

US v. Dougherty

UNITED STATES v. DOUGHERTY (1972)

US v. Edwards

No.?659, Docket 96-1218. - UNITED STATES v. EDWARDS - US 2nd Circuit

US v. Thomas

United States of America, Appellee, v. Grady Thomas, A/k/a Gates Thomas; Loray Thomas; Ramsethomas, A/k/a Rock Thomas; Tracey Thomas; Jason Thomas,a/k/a J Thomas; Lamont R. Joseph, A/k/a Kool-aid Joseph;ceasare Thomas, A/k/a Chet Thomas; Santo Bolden

You can start with just these three and go back through the embedded citations on point if you need more.

yw
 
It isn't illegal in the sense that you will never find a statute expressly prohibiting it. But you will find cases prohibiting it. And you will also find judges who instruct juries that they must follow the law of the case - and this includes the law defining the crime charged.
Name them.

For starters?

US v. Dougherty

UNITED STATES v. DOUGHERTY (1972)

US v. Edwards

No.?659, Docket 96-1218. - UNITED STATES v. EDWARDS - US 2nd Circuit

US v. Thomas

United States of America, Appellee, v. Grady Thomas, A/k/a Gates Thomas; Loray Thomas; Ramsethomas, A/k/a Rock Thomas; Tracey Thomas; Jason Thomas,a/k/a J Thomas; Lamont R. Joseph, A/k/a Kool-aid Joseph;ceasare Thomas, A/k/a Chet Thomas; Santo Bolden

You can start with just these three and go back through the embedded citations on point if you need more.

yw
Fair enough.

Now, can you tell anyone why Laura Kriho wasn't charged under the auspices of the rulings those cases?

I mean c'mon....Slam dunk, right?
 
It isn't illegal in the sense that you will never find a statute expressly prohibiting it. But you will find cases prohibiting it. And you will also find judges who instruct juries that they must follow the law of the case - and this includes the law defining the crime charged.
Name them.

For starters?

US v. Dougherty

UNITED STATES v. DOUGHERTY (1972)

US v. Edwards

No.?659, Docket 96-1218. - UNITED STATES v. EDWARDS - US 2nd Circuit

US v. Thomas

United States of America, Appellee, v. Grady Thomas, A/k/a Gates Thomas; Loray Thomas; Ramsethomas, A/k/a Rock Thomas; Tracey Thomas; Jason Thomas,a/k/a J Thomas; Lamont R. Joseph, A/k/a Kool-aid Joseph;ceasare Thomas, A/k/a Chet Thomas; Santo Bolden

You can start with just these three and go back through the embedded citations on point if you need more.

yw
In the case of Dougherty:

2) The judge erroneously refused to instruct the jury of its right to acquit appellants without regard to the law and the evidence, and refused to permit appellants to argue that issue to the jury.

Nobody here is claiming that the judge has to tell you that you can refuse to convict in the teeth of bad law, just that you can do so anyways.
 
This discussion has resulted to some extent in our talking past each other.

If a trial LAWYER tries to usurp the role of the Judge by "charging" the jury on "the law," and in the process attempts to tell a jury of their ability to perform a "jury nullification," the attorney could be sanctioned.

There is a difference between the contention that no judge is going to "charge" a jury on the self-refuting concept of "jury nullification" and the contention that it is a criminal act for a citizen to tell a jury the same thing before they ever become a jury (like when they are called first to jury duty).

The idea of criminally penalizing a citizen for telling prospective jurors of the concept of jury nullification borders on absurdity. Yes, there may have been some attempts to engage in such a prosecution a couple of (or a few) times. But it seems unlikely that any such case will EVER go to trial.

It is about equally unlikely that any judge will ever give a legal instruction to a jury that amounts to a blatant contradiction of one of the main precepts of the duties of a jury. Jurys don't MAKE the law. Legislators (with the approval of the executive or over the objection of an executive) make the laws. But to tell a juror that he (or she) may NEGATE a law (while at the same time telling them that their duty is to follow the law) is illogical on its face and it's not going to happen. In Dougherty, the Court decision confronted that very dilemma.
Moreover, to compel a juror involuntarily assigned to jury duty to assume the burdens of mini-legislator or judge, as is implicit in the doctrine of nullification, is to put untoward strains on the jury system. It is one thing for a juror to know that the law condemns, but he has a factual power of lenity. To tell him expressly of a nullification prerogative, however, is to inform him, in effect, that it is he who fashions the rule that condemns.
 

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