From: Greg Broiles <gbroiles@netbox.com>
Date: Thu, 12 Sep 1996 18:25:35 +0800
To: cypherpunks@toad.com
Subject: jury nullification/selection
Message-ID: <2.2.32.19960912075929.00691470@pop.ricochet.net>
MIME-Version: 1.0
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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
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." 

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

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
(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
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. 

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