Is this post a bid to avoid jury service for the rest of your life?

The argument about white juries in the South sounds compelling but its really a pretty disingenuous one. In upholding a right, I don't think Matt has to take responsibility for every unfortunate use of it. Its a little like telling a free speech advocate that he supports the beliefs of the Aryan Nation because he's not willing to adopt a law to supress their speech. All rights can and will be misused, but thats hardly a good argument for taking them away.

Jury Nullification, of course, isn't particularly democratic. Its a pretty old concept based in English Common Law. Jury nullification is rooted in the belief that the law of the land isn't the highest authority; that there is a higher law that trumps legislative authority and that legislators and even judges cannot always be trusted to uphold it. Just because duly elected representatives see fit to infringe upon any number of rights in support of a "war on drugs" that causes all kinds of needless misery is neither here nor there. Nor does it particularly have to matter that a majority of Americans support these policies. We don't live in a country where the majority is allowed to ride roughshod over civil rights.

The argument agains jury nullification is always that it would lead to anarchy but this isn't really right. Sure, the odd nut may hang a jury here and there on some silly pretext,(something that happens occasionly anyway) but I don't think you are ever going to find enough people to, say, consistently hang juries trying murdereres of doctors who perform abortions. Criminal laws ought to rely on a certain level of common consent, if you can't convince your average group of 12 people that something is actually a crime, I don't think it ought to be one.

I think your fundamental point is correct.

However, I think as a practical matter, most reasonable people wouldn't have to lie in order to serve on a jury. Most people aren't idealists or philosophizers and have a far more situational morality than they realize. They'll often claim to be "totally" opposed to something, when they aren't. For instance, if someone is opposed to capital punishment, start doing "what ifs" about more and more horrific crimes committed against people close to them, and most people will eventually say, "yeah, I'd hang that bastard."

As a practical matter, I think that under most circumstances, jury nullification is less about "the law is wrong" and more about "well, the law is right but this is an exception." Its most valuable (though far less storied and reported-upon) effect is to preserve order while still serving justice by permitting hard cases to not make bad law. A reasonable person doesn't want to re-define murder, but doesn't want this person who had a one-in-a-zillion case go to jail for something that really wasn't wrong. It doesn't force people to choose between order and justice in very difficult cases, and that I think that benefits society as a whole.

I love how much faith you have in government. As if it is a magical word that induces good behavior. But it isn't a magic word. A government is a collection of flawed human beings, subject to every vice, temptation and sin that the rest of us are. The major difference - the governmental set of flawed human beings gets to make rules that the rest of the flawed human beings have to live by.

Nullification is one of the defenses, one of the ways that the people can say "Enough! This will not stand."

Law and justice are supposed to be in the hands of every individual in America. These individuals are all (supposed to be) equal, with an equal voice in the concept of America and an equal respect to their beliefs and mores. Your disagreement with that principle is one of the things I loathe about many on the left and the right.

The widespread *opposition* to jury nulification today, is predicated on the opinion of lawyers that only lawyers should exercise any real power in a courtroom. Basicly, they find the right to trial by jury offensive, and lacking any real prospect of abolishing it, they've set out to render it toothless by a combination of jury selection and treating the jurors like mushrooms.

Yes, the point of having juries is to enable juries to prevent the enforcement of laws they don't like, whether in general, or in a specific application. If you think that's a bad idea, lobby for repeal of the 6th and 7th amendments.

Your comparison with colonial America is fundamentally flawed. Since the colonies had no say in Parliament they had no voice in the laws they were being asked to enforce. In such a case jury nullification may be justified. However ridiculous our drug laws are they have been enacted by a representative government. Jury nullification also nullifies the basic social contract.

It's one thing for an entire jury to stand pat and refuse to indict John Wilkes and go to jail for their actions. It's another thing for one jury member to argue that the facts aren't as eleven others view them not because of an honest belief but rather because the obstruction will yield the result the jury member wants.

As a couple of people have said, you can't glibly come to a conclusion about jury nullification unless you consider the example of southern juries during the civil rights era. Jury nullification is spoken of here as if it were always a protection against government overreaching, but during that era it increased the power of oppressive governments to encroach on the rights of minorities. It led to lawlessness not only in the jury box, but in society at large. How so? Because any public official who violated the rights of blacks could count on being cleared of any criminal or civil charges. Even murderers got off. It isn't a case of the "odd nut" when majority prejudices are that entrenched. And isn't it a little ridiculous to say that we shouldn't be concerned about how other people would abuse the rights we assert for ourselves? For instance, most of us accept limits on our right to free expression -- no right to falsely yell "fire" in a crowded theater and all that -- even when we trust ourselves not to abuse the right.

(I think people may be underestimating the dangers of nullification because the jury is commonly thought of as standing between the government and someone the government dislikes. That's not always the case. There are lots of situations, as in the southern civil rights trials, in which juries can enable governments to carry out a charade of justice.)

The constitution says nothing about jury nullification, so I think people may be jumping the gun when they assume that's what the framers meant by the right to trial by jury (or assume that the framers interpreted jury nullification the same way they do -- I believe some scholars claim that it means that jurors can't be directed to take a certain view of the facts and thus it falls short of giving them the authority to bend the law; there may even be support for that view in the English cases mentioned here -- e.g., English judges instructing juries on how to view the facts -- but I don't recall).

The Declaration of Independence and other revolutionary rhetoric is not usually given decisive weight when courts interpret the constitution. For instance, the declaration, with its talk of all men being equal, wouldn't give much help in interpreting the constitutional provisions that protected the institution of slavery. (The declaration doesn't purport to be a constitution or a set of laws binding citizens; in any event, I'm not sure we would want to treat it as binding -- wasn't one of our grievances that the king refused to return our runaway slaves?) I don't know enough about the history of it to say what exactly the framers meant by the jury right, but then I don't see much evidence that anyone else here does either.

"Student" says, "We don't live in a country where the majority is allowed to ride roughshod over civil rights." How long would that last if we couldn't punish public officials who pander to majority opinion? Majority opinion will tend to be the majority on juries.Of course, minorities could exert some power on juries by denying unanimity in cases in which that's required -- but that could easily be undercut by repealing the requirement of unanimity (it's not guaranteed by the constituion) or by using the southern method of keeping minorities off juries and withdrawing the protection of the state from those who dare to dissent. To the extent that we've been able to avoid that kind of thing, I think it's in large part because people respect the idea that everyone is subject to or "under" the law. It's all well and good to talk about a higher law, but that's hardly a restraint against majority opinion given the way people so often equate the higher law with what their sort of people think is right (consider the way slaveholders and segregationists turned to the bible to bolster their prejudices). (And, yes, people do disagree about how to interpret secular legal codes, but the U.S. Code is a lot more specific than scripture.)

I disagree with the view that lawyers want to abolish juries. There are a lot of lawyers who make good money off the jury system. It's often said in the press that trial lawyers have so much influence that they've been able to defeat most efforts at tort reform. (I think their influence is exaggerated, but still...) Probably their services would be in even greater demand if juries became more erratic and winning cases on the law became correspondingly more important.

I'm not sure if the 6th Amendment was meant to enshrine nullification on legal questions, but there's little doubt that jurors do exercise that kind of nullification and as far as I can see there's little or no official action taken against them (some nullifiers probably face social ostracism). Whatever its legal merits, I think it makes practical sense to restrict it to as few cases as possible (those I suppose it would be better if the courts brought some clarity to the issue). That means giving jurors reason to be reluctant to exercise that power.

EDIT: There's an additional factor that would probably be important in answering the historical questions raised here. I think that in the framers' era it was still common for people to be tried for "common law" crimes; that is, crimes formulated by judges and not enacted by a legislature. That would tend to undercut the argument that popular sovereignty made jury nullification unnecessary in the US. Maybe giving some law-making authority to the people was meant as a check against the law-making authority of the judges. Maybe some of the ambiguity surrounding jury nullification today reflects the fact that a doctrine created in that era has to do service in the modern era in which almost all criminal offenses are enacted by a legislature and put in the statute books.

I'm not sure how that effects my argument, but in any event I think it supports my contention that this is a far more complicated issue than Matt supposes.

EDIT2: Here's an article that supports the idea that jury nullification has been a cloudy subject throughout its history:

http://en.wikipedia.org/wiki/Jury_nullification

Keep in mind that the government isn't the only side in the room. The defense has lawyers too. They are charged to present a case. Your point about the government being a collection of flawed human beings is valid. I think Winston Churchill said that Democracy is the worst form of government except for all the others or words to that effect. We have to have some sort of system in place if 300 million Americans are going to live together. The notion that every individual is going to "roll their own" is utopian and unworkable.

"The defense has lawyers too. They are charged to present a case."

They are also systematically hobbled by the government's determination that some types of evidence and arguments may not be heard by juries. Such as, for instance, the government's decision that the jury in Peter McWilliam's case would not be permitted to know that the pot he was raising was being grown legally under California law for the city of Oakland.

The legal system treats jurors as mushrooms, even in instances where the defense WANTS them to know the truth. As I said above, normally I'd object to lying in order to get onto a jury, but if you're asked about jury nulification, I think it's a valid defense against the government's own dishonesty on the subject.