Jury System gone nuts...again

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MagiK Looks at Thorfin's post.....what are you? a walking law library?

On a side note....not everyone tries to duck Jury duty...I was on a Murder trial in San Diego once......
We found the guy guilty on circumstancial evidence....only to find out later that the Judge refused to let evidence against a state trooper to be introduced....seems that while the hubby was away at sea (he was a Navy Captain) this trooper was the live in lover of the victim....and that being the case plus the fact that his (the troopers) finger prints were the only other prints foun on the victims car AND the trooper was the one who conveniently reporteed her missing and found the car.......there was more than "reasonable dooubt" in the case....but we found this all out later after we reached a verdict and had a chance to talk to the lawers..the Judge refused to speak to us after the case.

[ 04-30-2003, 03:03 PM: Message edited by: MagiK ]

[Thorfinn]

Jury nullification is another of my favorite topics. I have a .txt file that I keep adding stuff to as I find other references. I selected the best of the lot for this post. The full file goes on and on and on...

MagiK, courts deciding what defenses a defendant may use just irritates the heck out of me, too. Another clear case of the judge using the rules of the system to keep the defendant from receiving a fair trial. It is just like the survivors at Waco -- they were forbidden from citing the 2nd Amendment as a defense. Imagine that. A judge actually ordered that people may not quote the Bill of Rights in a court of law. In America!

And we hear whining about how weak the judiciary is...

[ 04-30-2003, 03:10 PM: Message edited by: Thorfinn ]

[Timber Loftis]

Thorfinn, I need to go to each case cited and put the quote in context before I can reply. Many of them struck me as being the type of lifted quote which begs to be placed back in context.

William Penn is a different issue. A jury cannot be punished for its verdict, it is true, but in the verdict can be changed. This is called a judgement notwithstanding the verdict, or JNOV.

The 1969 decision you cited is true. In criminal cases, an aquital is final - no appeal, etc. So, technically, a jury can acquit in a criminal case based on jury nullification. But, the finality of aquittal rule trumps the jury nullification no-no, it doesn't replace it. A judge often deals with this by sanctioning attorneys who argue for jury nullification or try to put it forward as the theory of the case.

More later - time, time.

[Edit:] Thorfinn, some questions re: jury nullification.
1. Does it not, as I mentioned, re-create the "50% + 1" problem.
2. Is there any value for uniform application of the law and wouldn't jury nullification destroy that?
3. What value has stare decisis (the doctrine of precedent) in such a system? If any jury on any given day can ignore precedent, where is the value of it? Furthermore, where is the value of an appeals court? Appeals courts, I'll note, only address questions of law, and can decide no facts after the jury has determined them. VERY few exceptions apply (like "new evidence" criminal appeals). (Don't confuse the "de novo" review cases, where facts do come out, as those cases address facts before a judge only, and not a jury, in motions to dismiss.)
4. Do you not see the intrinsic value of having the court determine the law, but only based on facts decided by an independent third party (the jury)?

[ 04-30-2003, 03:37 PM: Message edited by: Timber Loftis ]

Thorfinn, I heard on "Hard Copy" a TV news show, that the guy won his appeal. Don't know if they ever solved the Murder.

[Thorfinn]

But, Timber, where exactly did we shift from letting juries determine fact and law? In particular, why can't attorneys argue jury nullification? What is the rationale, other than the sheeple might realize the government is actually the servant of the people, not the other way around? Why are the courts so deathly afraid that the people may not choose to enforce laws they don't believe should be on the books?

Tangentially related, that was Jefferson's defense of the jury system. That you had to have total agreement among the jury that not only did the defendant commit the act, but that Congress had not exceeded its powers in creating the law in the first place.

That, I think, is the real reason for fear of informed juries. I know of no person who cannot think of a time he has been treated poorly by government. Who cannot think of one time that he received worse treatment by a minimum wage McDonalds employee than he is treated by an alleged "civil servant" every time he needs to renew his driver's license. To allow juries to reach their full power would force the state to wither into a mini-state. That, IMO, is the real fear. Politicians are drawn to the field because they get to make laws. If they were no longer able to boss others about, how would they compensate for having small, um, well, whatever it is that drives them to want to order their fellow man about?

[EDIT]

1. Does it not, as I mentioned, re-create the "50% + 1" problem.

No, not at all. In matters criminal, it requires absolute agreement. Thus, the laws on the books should be ones that everyone agrees with, not those specifically targetting certain easily derided demographics.

In matters civil, isn't that what we have now?

2. Is there any value for uniform application of the law and wouldn't jury nullification destroy that?

Sure. I have nothing against uniform application of laws that everyone agrees with. I can't think of a single person in favor of random murder, for instance, so a law there would work pretty much all the time. The War on Drugs, though would likely be shot down within the first few cases, since there is not a supermajority in favor of drug laws.

3. What value has stare decisis (the doctrine of precedent) in such a system? If any jury on any given day can ignore precedent, where is the value of it? Furthermore, where is the value of an appeals court? Appeals courts, I'll note, only address questions of law, and can decide no facts after the jury has determined them. VERY few exceptions apply (like "new evidence" criminal appeals). (Don't confuse the "de novo" review cases, where facts do come out, as those cases address facts before a judge only, and not a jury, in motions to dismiss.)

Good question. I don't believe the jury should be forced to rule the same way that a previous jury did, just as I don't believe I should drive a buggy to church, just because my grandfather did. What the attorney should do is figure out how those arguments were constructed, and why the jury bought it, then duplicate it. As for appeals, I do not think they are extensive enough. For instance, in the case MagiK cited, it sounds like suppressing evidence that would have led to "reasonable doubt" should be a big no-no. I doubt the judge was forced to make restitution for violating the defendant's fair trial rights, but that should have happened.

Look, I don't care if a defendant wants to use the "Elvis flew into my home in a UFO, and popped my wife with a ray gun" defense. He should not be prevented from trying it. On appeal, the lawyer would produce the contract he signed with the defendant, where the attorney promises to put up the best darned "Elvis-UFO-Raygun" defense he can. Case closed.

4. Do you not see the intrinsic value of having the court determine the law, but only based on facts decided by an independent third party (the jury)?

None whatsoever, unless your goal is to become a tyrannical regime. That is pretty much what Stalin had, and what Hitler had. They set up some funky rules, and the jury, if it can be called that, merely did a fact finding as to whether the defendant did, in fact, put milk on his Cheerios, and thus needs to be executed as an enemy of the state.
[/EDIT]

[ 04-30-2003, 04:16 PM: Message edited by: Thorfinn ]

[Timber Loftis]

Thorfinn, I edited my post, and asked a few questions. Ireally ask you look at them.

Look, there is a difference in the "law" as you are discussing it. I would love to put juries in charge of defining whether or not Congress passed an ultra vires law. The commerce clause jurisprudence is so goofy, juries couldn't possibly do worse. But that is "statutory law," which is made specifically to derrogate from the "common law." What about "common law?" Can the jury decide an already-settled legal precedent used for 100's of years is invalid? If so, what "precedent" would the next jury use to determine its decision? Or, would it too just "wing it."

I think the jury acting primarily as fact-finder and the court acting primarily as the law determiner is, with limited exception, a better model.

Now, let's not forget that any "law" must be "applied" to "facts." The jury does perform some of these quasi-legal application functions, and that is fine. In this way, I think you may be seeing things that you interpret as juries deciding the law, when really it is merely applying the law to the facts to determine if the law is applicable in that instance.

[Thorfinn]

The big problem with not letting juries dink with "common law" is that while common law developed in a competitive environment, there is virtually no competition in courts today. There is only a question of the statist court in which one will be forced to appear. There is no incentive to adjust for the times or the circumstances. Instead of being a common law of the people, it merely becomes a law of an aristocracy of robed nobles, something of which the founding fathers disapproved...

[EDIT]
Whoops. Forgot to mention it. I edited my earlier post with my discussion of your questions.
[/EDIT]

[ 04-30-2003, 04:28 PM: Message edited by: Thorfinn ]

[Timber Loftis]

Thorfinn, a huge issue in jurisprudence is enforceability of a judgment. A judgment sans enforceability isn't worth the paper it's on. In your system of (presumably) privatized competitive courts, how do the judgments get enforced? Does each court have it's own Rocko and Vinnie with lead pipes or what?

[edit] Oh, seems you've done away with appeals courts. Right?

[ 04-30-2003, 04:45 PM: Message edited by: Timber Loftis ]

[Thorfinn]

Really? Why don't you bounce more checks, or declare bankruptcy to get out of debt? I mean, there is little more than a handslap for those, other than the fact it affects your credit rating. (Not sure why Bill Gates doesn't do it, though probably because money is coming in so fast he can't even staunch the flow, let alone write an overdraft.)

Anyway, here is a completely voluntary, free market approach to people who spend more than they make. No enforcement, yet people still comply and pay their bills on time.

So, no, I don't buy the premise that it is impossible to get people to keep their contracts without sending SWAT teams to their homes...

[EDIT]
Now you are picking on me. I don't have a fully fleshed out system, mostly because the documentation on how the merchant courts worked is very spotty. As I understood it, parties complied because they wanted others to still do business with them, since if they could not be taken at their word, their promises of future payment or future delivery meant little.

You are probably right -- there would be no real appeal process. But you could take the loony-bin of a judge who did something too odd-ball to a court of your choice.

If you could only practice law with a license, it seems to me you would do what you could to stay in the good graces with the licensing board, no?
[/EDIT]

[ 04-30-2003, 05:03 PM: Message edited by: Thorfinn ]

[Timber Loftis]

Um... if my name is BigCoEveryoneKnows I don't pay my bills on lawsuits. Pretty common in fact. Many big-dollar cases create a second litigation to enforce the judgment. Oh, they pay, if they don't declare bankruptcy first, but only after an average of 24 mos. of ducking and weaving. ComEd's credit rating isn't so hurt by refusing to pay a $2mil. bill.

In fact, most companies are quite recalcitrant in paying bills. I noted on the D&B sheet for a company the other day that it pays its bills more than 60 days late 12% of the time, which gives it a GOOD credit rating in its industry. [img]graemlins/dontknowaboutyou.gif[/img] When I managed subcontractors, the phone company kept us AT LEAST six months behind on payments for services.

These problems are only exacerbated when it's WeeJoeSchmoe NoPower who's trying to enforce the judgment. As well, the absolute abuse of "restructuring" bankruptcy by corp's exacerbates the problem. Of course, both of these problems are nullified, to a large extent, by disbanding the corporate form, which I remember you think should be tossed. However, rich Boss Hoggs and larger partnerships will still exist.