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Food Not Bombs trial rescheduled after too many jurors objected to $500 fine for feeding homeless
(www.houstonchronicle.com)
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this post was submitted on 23 Jan 2024
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Too many jurors… don’t know about jury nullification.
Jurors are expressly prevented from being educated on the third option to avoid its use.
In this case, it is because jury nullification was originally used by racists to give white murderers a pass for killing black people.
Yes, jury nullification can have positive uses, but also terrible ones.
I don't think the law CAN function when there's an enormous segment of constituents that don't believe in it. If you have 99.9% racists in a country, it's going to be near-impossible to write laws that put them on a jury and achieve an equitable result.
Ideally, the change today is not that jury nullification is impossible - it's that the percentage of racists has drastically fallen such that even in extremist counties you'd be unilkely to get 12 racist jurors.
And, while old examples are around racism, this could extend to other extreme feelings of justice; in fact I'd say this current case is a good one, if 99.9% of constituents feel a person should not be fined for feeding the homeless.
So make sure everyone knows about how to use it for good.
How in the hell would we accomplish that?
The same way we spread any information: by talking to people about it, making memes about it, posting flyers up, whatever you do, do it. I bring up jury nullification whenever I'm in a conversation about the legal system, and it turns out I hate the legal system so that happens a lot.
Just do exactly what you would do for anything else that you care about and want to make people aware of. I'm not suggesting we levitate the Pentagon with concentration and acid or saying we should end world hunger. Literally just talk about this to people. Upvote. Share this with people. Talk to people and tell them about the case. Tell people about jury nullification. Post a TIL if you just learned about the concept.
You said to use it for good.
Telling someone about jury nullification doesn’t mean they’ll use it for good.
Tell them how to use it for good. The law skews towards evil by the nature of what the law exists to do and the historic inequity inherent in it's application. If jury nullification was used at random it would be used for good more often than not. In the past it was used both in the south to legitimize lynching and in the north to ignore fugitive slave laws ("Some commonly cited historical examples of jury nullification involve jurors refusing to convict persons accused of violating the Fugitive Slave Act by assisting runaway slaves or being fugitive slaves themselves, and refusal of American colonial juries to convict a defendant under English law." - https://en.m.wikipedia.org/wiki/Jury_nullification#:~:text=Some%20commonly%20cited%20historical%20examples,a%20defendant%20under%20English%20law.)
If you talk about it's history, then you absolutely end up talking about how to use it to nullify illegitimate laws. I said to tell people how to use it for good, not "ensure that every human who knows about this only uses it for good." I didn't say the later because that would be an absurd thing to day that's just obviously impossible to achieve.
And which laws should be subject to jury nullification? Just the ones you think are bad? Who should it be used for or against? Yes, in this case it makes sense if you have any level empathy because the law is needlessly cruel. But what if I fervently believe that laws punishing white collar crime in any way are always cruel so any jury deciding a white collar case should always nullify? Should I go ahead and educate the world that if you're on a jury in a fraud case that bankrupted retirees and school teachers, you should always vote not guilty because the crime of fraud is absurd so punishing it is cruel?
If a law is stupid, you need to fix the legislature or legislative process, not the enforcement. Selective enforcement of the law tends to consistently lead to very bad outcomes.
Vote with your principles. If I don't agree with a law, I'm not going to vote to convict someone of it. Like vice laws; as long as anyone involved consents, I don't think it should be punished. If I'm on a jury, then I have the power to affect that in that case. I'm not going to vote to punish someone because I wasn't able to do so for other cases. Sure, it would be better to get rid of vice laws and you might not agree with me. But I'm only going to vote to punish someone if I think they should be punished, regardless of what any laws say.
What happens when the person's principles include hating women and believing that in violent crimes with a female victim, she must have done something to provoke it in every instance so if the defendant is a male, he should never be found guilty? People who believe this actually exist and might be otherwise eligible to serve on a jury. Should they be allowed to nullify because they think a man should never be punished for assaulting a woman?
I know it's an extreme example but it's not a slippery slope because stuff like this actually happens. It's wild and is the reason why many lawyers and judges really dislike jury nullification.
I think that's a problem with jury trials in general, and even authority in general. Sometimes people who you disagree with strongly end up with the power to affect the lives of others. Jury powers, just as any others, can be abused. But they can also check abuses, like if a prosecutor is overzealous, a judge is biased, or lawmakers corrupt.
I think the best we can do is spread power out as much as possible and hope that people will ultimately prove to be good more often than bad, so that all of the maneuvering and countering people use their power for will trend more towards good. Any solution that concentrates power to keep it out if the hands of bad people has the footnote "assuming those who get that power are good and use it in good faith and don't change while they have power", which is not a safe assumption.
Definitely agree with you there. I just never like how simplistic people make jury nullification seem. It's really just a quirk in the legal system, not an actual thing juries are supposed to do and it gets abused a lot.
You're describing cops.
I was shot by a fascist. 11 people believed the evidence, one person was also a fascist. Did anyone need to tell the fascist about jury nullification? No. They don't care about the law and never have. That's the point. They already do it all the time. You should know that you can do it too.
That isn't the reason why courts are keeping it seceet
It wasn't originally used that way but it does illustrate the point
Judges and Lawyers hate nullification not because they're snooty elitists who hate us uppity commonfolk knowing our options,
It's because juries that know about nullification are a lot more likely to go ahead and do it, which basically amounts to a legal form of poisoning the jury.
Judges and Lawyers are expecting to be able to argue the case based on the law as a given and that becomes pretty challenging when you now also have to explain to the jury why they shouldn't decide the law being discussed should be thrown out for this case.
It turns the justice system from hypothetical rule of law to mask off rule of societal biases and that would be MUCH WORSE for the justice system than the present alternative.
Consider how bad the justice system is at taking rape cases seriously already, and now consider that with the defense being able to hit the jury with every rape culture "you don't want to ruin his life over this!" rhetorical dungheap imaginable because he knows there's no consequences for inducing a jury to nullify and the jury knows that even if the rapist is guilty they can decide to just ignore that if they like the cut of his rapist gib enough.
Only after they’re empaneled. There’s nothing preventing the education of jurors on the subject beforehand…
You're not wrong, but when you get selected for jury duty the selecting lawyer will make inquiries about your knowledge on the subject and disqualify you if you admit knowing about it.
If you bring it up to the jury, that can also have you disqualified as well as anyone else the lawyers think were influenced by the discussion.
The third option is supposed to 'naturally' occurr, as in the jury agrees that the law was broken but the situation is so 'outside the scope of the law' that the law can no longer be applied. (IIRC the judge can overrule the jury in this case, but it can be a pain)
Essentially it's up to the judge to determine whether the jury's conclusion is within the realm of the 'third option'.
Yeah. That’s why people, who could be jurors, should be generally educated on the subject.
I was trying to be subtle.
I don't have the data to say one way or the other. I can definitely see how public knowledge of the third option can be abused, especially these days when political alignment is more important than facts to many people.
Good point
Which is why you just say you don't believe the prosecutors proved the case. Also, there's supposed to be a limit on the number of jurors lawyers can dismiss, for exactly this reason. They're spending well more than the cost of the fine just trying to empanel a jury at this point.
If we wanted a justice system that didn't waste money, we'd be authoritarian in nature.
The money wasted is to insure 'as even a case' as possible, regardless of the crime.
That's the idea anyway.
When I say wasting money here, I mean because you're not going to get a guilty verdict. Not in the authoritarian judge dredd sense. In fact, in other articles it's clear the city has brought a bunch of these cases and has gotten zero convictions.
So it really seems like someone decided they're going to win this one even if they have to go through 100 sessions of jury selection. (They've gone though about 30 so far)
By the lawyers. There's nothing to stop normal people from talking about it, as long as you don't talk about it in the courthouse.
I agree with you there and would go a step further to note that public discourse on anonymous forums is extremely helpful for people to add context and philosophy to the understanding of the third option.
Many people here that are taking to discussing this are the outliers, just by being aware of it, and by being aware of it we can understand its potential use for good or ill and can contextualize the discussion in that frame of reference long before any of us are called to be on a jury, my concern would be those that do not take to discussing law, politics, and philosophy prior to being called to a jury being made aware of the third option with little time to reflect on its implications.
I think some people will browse the discussion and not truly reflect on the contents until possibly months later, while others that are directly engaging in the discussion will reflect currently and posit their views now while also being willing to amend those views should a more appropriate philosophy or fact be made available during the discussion.
Because different people will reflect at different rates this can have a deleterious effect on a trial if one learns of the third option too soon with little ability to reflect on the meaning and implication of a, usually unprofessional (law-career wise, not necessarily in manners), panel of jurors' choices.
It's always important for the jurors to respect the evidence before their own bias and sometimes people don't have the ability to disconnect their emotions from the logic present to be able to do that, but discussions on public forums with participation from many people from a wide array of backgrounds will allow for a more diverse and effective toolset to engage a trial with, ideally leading to a 'more effective' ruling from the jury.
Ultimately it comes down to the wide variance of educational quality that everyone even within the same society can be impacted by, whether it be due to their own individual actions or those of the municipal, state/provincial, or national actions on the education quality and quantity, it requires active discussion and reflection not only of the choice but the ramifications the choice can have beyond the trial itself.
I tend to agree with the scholars that believe the jury is the 'god of the courtroom', but I am also extremely jaded by my personal experiences with various large groups of people and their seeming willingness to ignore reality to 'fit in' or 'feel better'. The number of times people label me as a pessimist when I'm trying to be objectively realistic is startling and seriously concerning.
Ultimately I would hope people would, with ample reflection, direct their attentions to discovering what the 'right' course of action is, as opposed to the 'moral' or 'easy' choices tend to be.
I agree, we should make discussion of this stuff a thing again. It used to be, but at some point everyone agreed that politics was a taboo subject. Better to talk about your gender correct conversational topic. Which is ridiculous to hear in a democracy.
Speech is restricted in the courthouse? What the fuck?
Yes, and there are good reasons for it. Imagine if the victims family met the jurors and told them stories from the victim's childhood.
Of course authoritarian figures take this good reason and stretch it out to cover things people should know about too. In the case of jury nullification the reason is how it was used by white juries through history. They would routinely return a not guilty verdict if the victim was black.
But that can also be solved with a diverse jury and majority verdict for a half sentence. (10 years instead of 20, and no capital punishment without a unanimous jury). They went with restricting speech on it because it also affected the shit laws they were pushing about drugs and protesting.
This actually is a great example of jury nullification. From https://fija.org/library-and-resources/library/jury-nullification-faq/what-is-jury-nullification.html talking about a different case:
So when these potential jurors said they wouldn't fine someone for feeding the homeless, it's one brick in the wall. Get enough bricks and all of a sudden the law is unenforceable.
This is an excellent writeup, thank you.
To get there they'd have to risk being charged with perjury since it sounds like they were directly asking that question.
Only if they could prove it
I always wonder what they'll do if I start chatting about it with other people during the selection process.
From what I understand it depends on the jurisdiction. Some places nothing happens, other places they'll declare a mistrial and select from a new jury pool. Yet others they'll slap you with a charge of contempt of court or possibly jury tampering.
It is contempt of a court of law to
checks notes
broaden the involved parties' knowledge of the law.
Ultimately it comes down to a subtle but important disagreement about what exactly the role of a juror is. For supporters of jury nullification, a juror determines if someone is guilty or innocent. For opponents of jury nullification a juror determines if someone broke the letter of the law or not. Those that think a juror only decides if a law was broken or not feel it's the judges duty to determine guilt or innocence based on the juries findings. The contempt of court charge is for essentially stepping out of your lane and taking power from the judge.
Personally I find it a weak argument, it has always I feel been the intent that jurors judge guilt or innocence. Specifically they decide if not just the letter but the spirit of the law has been violated, or in the case of an unjust law if no guilt is possible.