Jury Nullification

Yosselle · Post by **Yosselle** » Thu May 24, 2001 3:52 am

Norm,

First, I want to thank you for this enjoyable joust...

<BLOCKQUOTE>quote

Originally posted by Norm Abrahamson: I'm afraid you miss the point regarding taking an oath. It is entirely voluntary. A person is not forced to take the oath or to serve against his or her conscience. A juror is presented with a simple choice: Take an oath and abide by the oath, or do not take the oath and do not serve. It may not be an easy choice to make, but the important ones never are.

Quite the contrary. I see our difference on this quite clearly. First of all, jury nullification should be a relatively rare thing when the entire body of Law is just. A random selection of 12 people will not let a true criminal go unpunished even once in a 1000 trials. But, you believe that one's commitment to justice is a relative matter. That one can voluntarily turn it on or off. And that the commitment to justice must remain secondary to one's duty to uphold the law, regardless of how unjust it might be. I believe that my first duty is to justice, not rubberstamping the will of the State. Since I am morally bound by the higher calling to serve justice (as it seems - from your recollection of your oath - that you are, too), I am bound, ie. forced to take the oath (which, because it is thus forced, I am not bound to abide) in order to serve on the jury so that I may serve justice.

So the choice is not whether to abide by the oath and serve or refuse the oath and not serve. It is:

1. To get on the jury by any means necessary and then vote for justice or
2. Deny justice by:
---a. refusing to serve or
---b. by abiding by an oath that betrays your oath to God.

Note, that "voting for justice" may, in many cases, be congruent with the law.

<BLOCKQUOTE>quote

Originally posted by Norm Abrahamson: In the infancy of the civil rights movement in this country, thousands of Black Americans sat at lunch counters, rode in the "White" section of buses, and marched to demand equal rights under the law. They did so openly and at great personal risk. In fact, many of those men and women were injured and killed for their actions. They acted heroically and according to the dictates of their conscience. They made a difficult choice and lived or died with the consequences. That is akin to standing up and saying that you cannot serve on a particular jury due to your personal belief. You may risk being cited for contempt of court, but that is a comparatively small risk. On the other hand, when several Los Angeles policemen were acquitted of charges of beating Rodney King, thousands of incensed citizens who were properly outraged, improperly rioted. They acted contrary to law and immorally. They were not heros, they were criminals. Their actions were analogous to jury nullification. They did not stand up to be counted for a belief, but hid in the shadows.

"Contrary to law" does not necessarily equate to "immorality". I'm sure you would agree with that general statement. Furthermore, sometimes "In accordance with law" does equate to "immorality". I would never step down from serving on a jury "because" of my personal beliefs. (BTW, since when is the belief in justice merely a "personal belief". I always thought that justice was a universal good.) If the opportunity arose, I would do everything in my power to serve on a jury because of my beliefs. My right to do so comes from the same place that the right of civil disobedience of the heroic civil rights freedom fighters came from. Asking me to register my dissatisfaction with the justice system by not serving is akin to asking Rosa Parks to register her dissatisfaction with segregation on buses by not riding the buses.

<BLOCKQUOTE>quote

Originally posted by Norm Abrahamson: As to the swearing in oath for attorneys, I do not have the exact language handy and will try to get back to you.

Thank you, kindly.

<BLOCKQUOTE>quote

Originally posted by Norm Abrahamson: Lawyers are also bound by professional rules of conduct. A prohibited act of misconduct includes the following: "It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice." Mass. Rule of Professional Conduct 8.4(d). To participate in jury nullification as a juror would violate that rule.

I think you mis-spoke. Jurors are not bound to the oaths of lawyers. They are only bound to the call of justice. They are to use the facts and the law as sturdy guideposts, but in the end they must vote their consciences.

It is not only [the juror's] right, but his duty...to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.
--John Adams, 1771

<BLOCKQUOTE>quote

Originally posted by Norm Abrahamson: In fact, even urging a juror to vote contrary to what he or she perceives to be facts of a case would likely violate that rule.

We obviously disagree. For judges and attorneys not to inform jurors of their right and obligation to vote their conscience even if it conflicts with the law is "prejudicial to the administration of justice".

Clearly, urging a juror to ignore the facts would be wrong. But, at the risk of beating a dead horse, urging them to vote their consciences as regards the law echoes the admonitions of centuries of precedent, legal scholarship and moral philosophy. Also, it seems to me that avoiding "prejudice in the administration of justice" might occasionally require jury nullification. Was Chief Justice John Jay wrong? Was Jefferson wrong? Was John Adams wrong?

It's a good thing that our right to free speech allows me educate people far and wide as to their rights and obligations as jurors. And while I really can't fathom your disagreement with me on this issue, it is comforting to know that your oath to uphold the Constitution precludes you from actively working to limit the dissemination of this information. And yet, it is my understanding that even mentioning this topic in court can bring down a contempt citation. How wonderfully paradoxical. See http://www.fija.org for more information

Yosselle
--Magic is Practice

[This message has been edited by Yosselle (edited May 23, 2001).]

[This message has been edited by Yosselle (edited May 24, 2001).]

Panther · Post by **Panther** » Thu May 24, 2001 3:28 pm

1) I'd like to say that this is a good thread and everyone has remained civil.

2) I've found the information (some of which I already knew/had) from Yosselle, very refreshing. Usually, I'm the one that throws this type of historical precedent out for consideration. Having the words of the Founders so clearly showing their intent is hard to dispute.

3) Hmmmmm... no responses to my suggestions for changes (actually a return to the original intent) to the current judical system. Interesting...

4) I, too, am anxiously awaiting the text of the lawyer's oath that is taken to become a member of the Bar.

5) I find it disheartenly curious that the historical precedence, scholarly words of the Founders showing their beliefs and intents, and the moral philosophy of serving justice rather than the State have all been ignored in the continued cause of supporting the status quo at all costs...

Please continue. This is rather enjoyable from my perspective...

Norm Abrahamson · Post by **Norm Abrahamson** » Thu May 24, 2001 9:28 pm

Dear Yosselle,

I took your advice and checked out the FIJA web site, which has been the source of most of your quotes. I would caution you to consider whether your source of information has as its goal the dissemination of information about a subject, or rather the advancement of a particular political agenda. It appears to me that FIJA has a definite political agenda that it espouses. I will leave it to you to determine whether that in any way colors the "educational" information presented on the site.

You have quoted several cases from the FIJA web site. Did you read the cases? Do you know if you quoted from majority, concurring or dissenting opinions? Do you know the underlying facts of each case? Do you know whether the quoted language was part of the holding of the case or dicta unrelated to the case in chief? These are important factors in determining whether a small quote from a case stands for the proposition for which it is cited. There is a danger inherent in taking the word of a third party that a citation is accurate and properly used, especially if the goal of the writer is to proselytize rather than to educate.

When you discuss the constitution, remember that it is a living, breathing document. The genius of the framers of the constitution is that they were able to provide us with a road map for a legal and political system that we follow more than 200 years after it was written. However, you probably don't want to adopt in whole the attitudes and opinions of the framers. If that is so, jurors will only be white male land owners. Women and blacks will not be allowed to vote, and slavery will be legal. A slave will count as 3/5 of a person for census counts which will be used to determine a state's representation in Congress. My point is that current issues must be viewed in the proper context. The constitution is what is important, not necessarily the opinions of the framer.

You stated that justice is a universal good. But whose justice? We are a nation of laws and must rely on the law as a signpost to show us the way. In some places, it is considered just to cut off the hand of a thief. In other countries, the USA is considered barbaric because we have and use a death penalty. The perception of what is just is far from universal, that is why we have laws.

You correctly pointed out that jurors are not bound by the lawyer's oath. What I intended to say was that a lawyer who is acting as a juror would be bound by the oath. Thank you for directing me to clear that up. And as to that elusive oath . . .

Massachusetts General Laws c. 221 sec. 38 states in its entirety:

"Whoever is admitted as an attorney shall in open court take and subscribe the oaths to support the constitution of the United States and of the commonwealth; and the following oath of office shall be administered to and subscribed by him:
I (repeat the name) solemnly swear that I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any false, groundless or unlawful suit, not give aid or consent to the same; I will delay no man for lucre or malice; but I will conduct myself in the office of an attorney within the courts according to the best of my knowledge and discretion, and with all good fidelity as well to the courts as my clients. So help me God."

Yosselle · Post by **Yosselle** » Fri May 25, 2001 4:24 am

Dear Norm,

<BLOCKQUOTE>quote

Originally posted by Norm Abrahamson: I took your advice and checked out the FIJA web site, which has been the source of most of your quotes. I would caution you to consider whether your source of information has as its goal the dissemination of information about a subject, or rather the advancement of a particular political agenda. It appears to me that FIJA has a definite political agenda that it espouses. I will leave it to you to determine whether that in any way colors the "educational" information presented on the site.

Of course, they hava a political agenda. It is to return control of this country to the People by way of the last non-violent mechanism available to us: jury nullification. The Founders also had a political agenda when they wrote the Declaration of Independence and the Constitution. It was to create a nation of freemen. We all have a political agenda. I'll leave it as an exercise for the reader to determine what yours is.

Their (FIJA's) underlying premise, of course, is that while our government still largely maintains the form of a constitutional republic, in reality we have drifted deep into totalitarian waters. Laws are passed without consideration as to their constitutionality. Most politicians at the State and National level from both major parties are corrupt beyond redemption. The mainstream media is in bed with the socialists that have taken over most of our institutions. Our educational system has been reduced to a network of government controlled propaganda camps that every year pump out millions of new little communists unable to reason or appreciate the legacy of individual liberty that their grandparents inherited. Our system of checks and balances has eroded into a muddy cesspool of homogeneous political pragmatism, and our freedoms are being inexorably squeezed out of existence by the benevolent grip of social justice -- all under the color of law.

<BLOCKQUOTE>quote

Originally posted by Norm Abrahamson: You have quoted several cases from the FIJA web site. Did you read the cases? Do you know if you quoted from majority, concurring or dissenting opinions? Do you know the underlying facts of each case? Do you know whether the quoted language was part of the holding of the case or dicta unrelated to the case in chief? These are important factors in determining whether a small quote from a case stands for the proposition for which it is cited. There is a danger inherent in taking the word of a third party that a citation is accurate and properly used, especially if the goal of the writer is to proselytize rather than to educate.

Excellent points. Did you read the cases? One doesn't need to be legal scholar to know the difference between right and wrong.

<BLOCKQUOTE>quote

Originally posted by Norm Abrahamson: When you discuss the constitution, remember that it is a living, breathing document.

Now who's proselytizing? And whose political agenda does the living, breathing document concept benefit?

<BLOCKQUOTE>quote

Originally posted by Norm Abrahamson: The genius of the framers of the constitution is that they were able to provide us with a road map for a legal and political system that we follow more than 200 years after it was written. However, you probably don't want to adopt in whole the attitudes and opinions of the framers. If that is so, jurors will only be white male land owners. Women and blacks will not be allowed to vote, and slavery will be legal. A slave will count as 3/5 of a person for census counts which will be used to determine a state's representation in Congress. My point is that current issues must be viewed in the proper context. The constitution is what is important, not necessarily the opinions of the framer.

It is obviously not necessary to adopt all of someone's views before you are allowed recognize specific views of that individual as correct. And it certainly would be remarkable if we actually did follow the Constitution.

And, clearly, you do not believe in the doctrine of original intent. Too bad. Without an original intent perspective on the Constitution, the words on the paper can be (and have been) bent and twisted to mean anything. That's as good as having no Constitution at all. So much for the (practical) importance of the Constitution.

<BLOCKQUOTE>quote

Originally posted by Norm Abrahamson: You stated that justice is a universal good. But whose justice?

More relativism? A very dangerous philosophy.

<BLOCKQUOTE>quote

Originally posted by Norm Abrahamson: We are a nation of laws and must rely on the law as a signpost to show us the way. In some places, it is considered just to cut off the hand of a thief. In other countries, the USA is considered barbaric because we have and use a death penalty. The perception of what is just is far from universal, that is why we have laws.

Theft and murder (the most common crime calling for the death penalty in the U.S.) are universally condemned as crimes. Differences in sentences pale in comparison to the importance of the definition of what constitutes a crime. How about criticism of political candidate 59 days before an election?

<BLOCKQUOTE>quote:<HR>Originally posted by Norm Abrahamson: And as to that elusive oath . . .

Massachusetts General Laws c. 221 sec. 38 states in its entirety:

"Whoever is admitted as an attorney shall in open court take and subscribe the oaths to support the constitution of the United States and of the commonwealth; and the following oath of office shall be administered to and subscribed by him: I (repeat the name) solemnly swear that I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any false, groundless or unlawful suit, not give aid or consent to the same; I will delay no man for lucre or malice; but I will conduct myself in the office of an attorney within the courts according to the best of my knowledge and discretion, and with all good fidelity as well to the courts as my clients. So help me God."<HR></BLOCKQUOTE>

Thank you. I guess I could have looked that up

Yosselle
--Magic is Practice

mikemurphy · Post by **mikemurphy** » Fri May 25, 2001 11:54 am

Dear Yoselle,

I have been reading the verbal kumite between you and Norm and am quite intrigued. I must say that I know nothing of the law and do not pretend to, but I do have something to say about the use of absolutes.

I'll paraphrase(I wish I could do that quote thing on the forums) :-(. You write that we have turned into a totalitarian society. By definition totalitarian means that we have a form of government which one party exercises complete control over all spheres of human life and opposition is outlawed.

Where is the totalitarianism that you speak of? Have we lost the "checks and balances" our founding fathers created? As evidenced by yesterday's upheaval in the US Senate, we are still a two party system with control mixed between the executive branch and the legislature. Has the Chief Executive Branch suddenly been granted powers that he hasn't had before? In fact, I see a government that tries to rein in its mistakes when power in the executive branch is concerned as exemplified by the Gulf of Tonkin Resolution versus the War Powers Act.

You also say that that laws are passed without consideration to their constitutionality. Correct me if I'm wrong, but it's not the duty of the legislature to perform judicial review. That's the job of the Supreme Court (Marbury v Madison).

But back to the absolutes I originally spoke of (sorry about the tangent). You quote:

"Most politicians at the State and National level from both major parties are corrupt beyond redemption."

There are plenty of cases to cite from I'm sure, but to make a blanket statement that
"most" is not worthy of the great argument and discussion that you have been having.

"The mainstream media is in bed with the socialists that have taken over most of our institutions."

Again, way too general and misleading. Even if asked, there is no way to prove a statement like this.

"Our educational system has been reduced to a network of government controlled propaganda camps that every year pump out millions of new little communists unable to reason or appreciate the legacy of individual liberty that their grandparents inherited."

This on I resent (I know you mean no personal attack on anyone), but as an educator, I know this to be untrue. In fact, pesonal examples of individuals who have far outreached their "grandparents legacy" are probably more common than your perspective. Because they may not agree with your way of thinking does not make them "communists unable to reason..."

I don't say that to be derogatory to you or anyone else, but the truth of education is not in the unfair test scores that a politically tainted organization publicizes. Too bad people don't come to the source for their information when it comes to education. Too many people believe that just because they went through public education or have a child in it, that makes them an expert in the field (not directed at you).

thanks for the time,

mike

Panther · Post by **Panther** » Fri May 25, 2001 7:14 pm

Jeannie was spelled with two "n"s... (Gawd I had a crush on Barbara Eden as a kid!

)

[This message has been edited by Panther (edited May 25, 2001).]

Yosselle · Post by **Yosselle** » Fri May 25, 2001 7:55 pm

<BLOCKQUOTE>quote:<HR>Originally posted by Panther: Jeannie was spelled with two "n"s...
(Gawd I had a crush on Barbara Eden as a kid!

)

<HR></BLOCKQUOTE>

Ok. Here's a question: Barbara Eden or Elizabeth Montgomery?

[This message has been edited by Yosselle (edited May 25, 2001).]

Panther · Post by **Panther** » Fri May 25, 2001 10:07 pm

<BLOCKQUOTE>quote:<HR>Originally posted by Yosselle:
Ok. Here's a question: Barbara Eden or Elizabeth Montgomery?

<HR></BLOCKQUOTE>

Gee... That is a "tough issue"!!!

Jeannie or Samantha... Hmmmmm... I'll have to plead the 5th!

student · Post by **student** » Sat May 26, 2001 12:47 am

<BLOCKQUOTE>quote:<HR>Originally posted by Yosselle:
Ok. Here's a question: Barbara Eden or Elizabeth Montgomery?
<HR></BLOCKQUOTE>

Honor Blackman. Or Diana Rigg.

student

Yosselle · Post by **Yosselle** » Sat May 26, 2001 3:25 am

<BLOCKQUOTE>quote

Originally posted by student: Honor Blackman. Or Diana Rigg.

Honor Blackman

Hey Panther, is it ok to start a thread called "Schwing!!" ?

Yosselle · Post by **Yosselle** » Sat May 26, 2001 5:18 am

Mike,

You have outlined many popular positions that are well worthy of response. I will acknowledge that some of my last post was a bit hyperbolic, but I stand by it in principle. I hope to give a considered response to your post over the weekend, but even forum junkies need to take a break now and then. I will however, briefly respond to one point that you made:

<BLOCKQUOTE>quote

Originally posted by mikemurphy: You also say that laws are passed without consideration to their constitutionality. Correct me if I'm wrong, but it's not the duty of the legislature to perform judicial review. That's the job of the Supreme Court (Marbury v Madison).

Technically you are correct. The legislature does not perform judicial review. However, if (as the founders intended), the members of the legislature honored their oaths to protect and defend the Constitution, they would not pass unconstitutional (ie. freedom-eroding) laws in the first place (regardless of political consequence), and judicial review would be a very rare occurance.

Yosselle
"In America, you need a license for everything"
-- Jeanie, from "I Dream of Jeanie"

mikemurphy · Post by **mikemurphy** » Sat May 26, 2001 11:31 pm

I think this is what we really call going off on a tangent. Although I can't say that I mind so much; at least I understand all of this conversation :-)

mike

Panther · Post by **Panther** » Mon May 28, 2001 10:03 pm

<BLOCKQUOTE>quote:<HR>Originally posted by Yosselle:

Honor Blackman

Hey Panther, is it ok to start a thread called "Schwing!!" ?

<HR></BLOCKQUOTE>

Definitely Honor Blackman!

And, ummmmmmm, NO!

Sorry, but I don't consider that a "tough issue"...

(Nice try though... Actually, being the believer in the 1st Amendment that I am, I guess it'd be OK. BUT, only with a nicer title and only if it were kept within the boundaries of good taste.)

Yosselle · Post by **Yosselle** » Wed Jun 13, 2001 4:46 pm

Mike,

Sorry about the hiatus. You quoted me correctly as follows:

<BLOCKQUOTE>quote

Yosselle's comment: "Our educational system has been reduced to a network of government controlled propaganda camps that every year pump out millions of new little communists unable to reason or appreciate the legacy of individual liberty that their grandparents inherited."

Then you said:

<BLOCKQUOTE>quote:<HR>Mike's response: This one I resent (I know you mean no personal attack on anyone), but as an educator, I know this to be untrue. In fact, pesonal examples of individuals who have far outreached their "grandparents legacy" are probably more common than your perspective. Because they may not agree with your way of thinking does not make them "communists unable to reason..."

I don't say that to be derogatory to you or anyone else, but the truth of education is not in the unfair test scores that a politically tainted organization publicizes. Too bad people don't come to the source for their information when it comes to education. Too many people believe that just because they went through public education or have a child in it, that makes them an expert in the field (not directed at you).<HR></BLOCKQUOTE>

What follows is an announcement (by the Libertarian Party of Massachusetts) of the speaking appearance of John Taylor Gatto. The announcement speaks for itself in response to our present discussion of education. I urge anyone interested in a deeper understanding of our educational crisis to attend.

<BLOCKQUOTE>quote:<HR>*** LPMA To Host Evening with John Taylor Gatto ***

Did you go to public school? Do you know someone who does? Do your children? Are you or do you know a teacher? Are you concerned with government over-stepping its bounds and doing a job incompetently? If you answered yes to any of these questions, you should be interested in this event.

On Friday, July 27th the Libertarian Party of Massachusetts will host a dinner banquet featuring John Taylor Gatto at the Crowne Plaza Hotel in Worcester.

The event begins at 6:00 PM, and includes hors d'oeuvres, a buffet dinner, dessert, coffee/tea, and free event parking. Gatto is the author of "The Underground History of American Education" and "Dumbing Us Down: The Hidden Curriculum of Public Schooling." In his books he examines the history of public education explaining the motivation behind creating the bureaucratic monster that is the public education system. Mass schooling was instigated to alienate children from their parents and themselves, turning them into working robots, dependent upon superiors for the purpose of maintaining a centralized economy.

Gatto's credentials are impressive. During more than 30 years of teaching in the government schools of New York, he was named New York City Teacher of the Year three times and named New York State Teacher of the Year in 1991. While State Teacher of the Year, he publicly quit teaching in an opinion piece published in the Wall Street Journal. He claimed that he, "was no longer willing to hurt children."

Since that time, Gatto has been an active advocate against forced schooling and the government monopoly on schooling. In 1992 the Libertarian Party named him Secretary of Education in their shadow cabinet. In 1997 he was given the Alexis de Tocqueville Award for his work in advancing the cause of Liberty.

Gatto writes and speaks about education, and about the manner in which compulsory schooling laws have "dumbed down" Americans. He is a strong advocate of home schooling and alternative schooling. "The mass dumbness which justifies official schooling first had to be dreamed of; it isn't real," says Gatto. Whether you have children or not, you will come away from this event wanting to know more.

This event is a great opportunity to introduce your friends and family to the Libertarian Party with an issue that is important to them. Please invite a friend. Please print and post the PDF flyer, available at [url=http://www.lpma.org,]http://www.lpma.org,[/url] in your local library or pass it along to someone in your town who is interested in education.

To register for the event, please call 978- 828-1538, or email kpirrello@lpma.org. For more information about Mr. Gatto, visit his website, http://www.johntaylorgatto.com <HR></BLOCKQUOTE>

Yosselle

Panther · Post by **Panther** » Wed Jun 13, 2001 7:09 pm

Is it safe to assume that Yosselle is a Libertarian?

On the John Taylor Gatto book... it seems a bit, well... conspiratorial doesn't it?