From: Brian Davis <bdavis@thepoint.net>
Date: Fri, 13 Sep 1996 16:07:20 +0800
To: Greg Broiles <gbroiles@netbox.com>
Subject: Re: jury nullification/selection
In-Reply-To: <2.2.32.19960912075929.00691470@pop.ricochet.net>
Message-ID: <Pine.BSF.3.91.960912234601.1738G-100000@mercury.thepoint.net>
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On Thu, 12 Sep 1996, Greg Broiles wrote:

> 
> Sorry if I was too terse earlier. I hadn't intended to start a big FIJA dustup.
> 
> I think that government sleaziness is not only useful in a true
> nullification argument ("he's guilty but you should acquit anyway") but

Certainly, the nullification argument can be used in the "send the 
government a message" sense, but it is more likely to be successful IMO 
in a "poor, poor pitiful me" argument.

> where it reflects on the credibility of testimony and the prosecution's case
> in general. It's easy to imagine a prosecution which rests on the testimony
> of people who lie every day (criminally involved informants, jailhouse
> informants, and undercover cops) and/or real evidence which was gained
> through the use of subterfuge and trickery (like wiretap/body wire
> evidence). The idea is to make the government look sleazier and trickier
> than the defendant(s) and the defense witnesses. If the government's
> evidence ends up being tainted directly or indirectly by lying, trickery,
> etc., then the defense can argue "Hey. You can't trust anyone who got up on
> that stand and talked to you. And if you don't know who to trust and you
> think everyone's lying, the government's got no case. And if they've got no
> case, the judge will tell you that you must acquit." 

This happens in most criminal trials in my area to at least some extent 
and to an ever greater degree in drug prosecutions (more material ...). :-)

 
> So I think that public distaste and discomfort with weirder and sleazier
> tactics on the part of cops can be (and is) discussed and used and "voted

You need to know who is on your jury.  Many goverment employees, 
retirees, and housewives (who frequently populate juries) are at least as 
likely to not care what the cops did while looking at, say, a young black 
male defendant charged with distributing drugs.

> on". "Not guilty" doesn't necessarily mean "innocent", sometimes it means
> "The prosecution didn't have enough evidence I thought I could trust." 

Not Guilty *never* means innocent.  It means not proven guilty beyond a 
reasonable doubt (or "we nullified"). 

> And yes, I agree that even mentioning nullification during voir dire will
> probably get you kicked off of a jury; and I think that's partly because one
> party or the other will be scared of nullification, and partly because the
> term "jury nullification" makes people think of FIJA and associated loons.
> Nobody wants a loon on the jury. (I don't think everyone who argues for
> nullification is a loon, but some of them sure are - and there's no good way
> to figure out whether someone's a loon or not in the middle of jury selection.) 
> 
> And I also agree that the jury selection process tends to select away from a
> true cross-section of society; but the few easily available examples (big
> trials like OJ or the Menendez Bros. or Wm. Kennedy Smith or whoever) are
> poor examples because they're not typical. Trials where lots is at stake

Especially because $$$ is available to hire jury experts, do a summary 
mock jury trial to test theories out, and have a shadow jury.

> (death penalty or celebrity defendant or big $ civil trials) tend to have
> longer processes (which weed out everyone who isn't incredibly boring) but
> it's not at all uncommon to pick a jury in a morning or in a day or two. In

My personal record in a federal criminal case is four hours -- from jury 
selection to verdict.  The defendant later threatened to kill his lawyer, 
the probation officer, the judge and ... me.

> federal court, the judge usually questions the jury instead of the attorneys
> (which is faster), and may or may not ask questions that the attorneys have
> suggested. Also, sometimes one side or the other will *want* especially
> analytical or technical or well-trained jurors. Attorneys want to pick a
> jury they can persuade, but they also want to pick a jury that can
> understand their theory of the case. 
> 
> So I guess my point is that while the jury system isn't perfect, it is in
> some ways a much more direct way to "vote" on how things work in the
> judicial and law enforcement systems. I think it's more immediately and
> directly democratic than the electoral system. All of the legal bullshit
> aside, it's possible to think about trials as a way for people who have some
> sort of problem (they've been injured or accused of a crime or whatever) to
> tell a group of uninvolved people about the problem and ask them what the
> right thing to do is. Yeah, that's really oversimplified, but I think that
> what juries do is important and that what they do has a political and a
> moral dimension even if attorneys aren't supposed to talk about it during
> argument. 

Roger that.
The first case I ever tried, I lost.  I was very unhappy.  But the victim 
was quite pleased.  She felt that she had the opportunity to say what she 
had to say ... let it all out ... and everything was fine.  There is some 
value in "reverse allocution."

EBD


> --
> Greg Broiles                |  "We pretend to be their friends,
> gbroiles@netbox.com         |   but they fuck with our heads."
> http://www.io.com/~gbroiles |
>                             |
> 
>