From: allens@yang.earlham.edu (Allen Smith)
Newsgroups: misc.legal,talk.politics.misc,talk.politics.theory
Subject: Re: Jury Nullification -- The Power is a Right
Date: 9 Oct 92 06:42:41 GMT
 <1992Oct3.002739.8491@eff.org> <1992Oct7.220311.5378@clipper.ingr.com>
Organization: Earlham College, Richmond, Indiana

In article <1992Oct7.220311.5378@clipper.ingr.com>, ald@clipper.ingr.com (Al Date) writes:
> In article <1992Oct3.002739.8491@eff.org> mnemonic@eff.org (Mike Godwin) writes:
>>In article <1992Oct2.184621.6085@clipper.ingr.com> ald@clipper.ingr.com (Al Date) writes:
>>But for you I'll reword it simply: there is a difference between making a
>>moral decision and claiming a moral right to make that decision. The 
>>latter process is far more self-conscious than the former.
> 
> You are splitting hairs which are tangential to the subject, but I
> am willing to humor you.  Careful readers love this stuff!
> 
> And you misstate the case slightly, counselor.  A jury which is acquitting
> a defendant in spite of the law and the facts is not only making 
> a moral decision, but they are ACTING on it, which is a proactive
> assertion.  They are turning somebody loose on society!  The neighbors
> will know who did it!  Assuming that the jury is impartial (not
> just stacked in favor of the defense) this is not likely to happen without 
> some extreme emotional turmoil on the part of the jurors, which presumably
> is resolved by their consciences overriding all logical considerations,
> and even overriding fear of what society will do to them.
> 
> If this is not an implicit claim to act rightly, I dont know what is.
> 
> Now, whenever the judge tells you to sit down and
> shut up he is implicitly claiming the right to keep order in the court,
> So it is that when a jury nullifies, they implicitly (not explicitly)
> claim the right to do so.  
> 
> Now, they may be doing it to spite the
> law, or because they are biassed in favor of the defendant, or because
> they find the law so repugnant that they wouldnt convict their worst
> enemy of it.  It is the latter case which has the most longterm
> effect, because it indicates shifting ethical grounds in society.  
> All the famous cases of nullification are milestones in the shifting
> ethical makeup of society, from Penn being acquitted of heresy, to
> Zenger being acquitted of sedition, to abolitionists being
> acquitted of violating the fugitive slave laws, to alcohol
> runners being acquitted of Prohibition laws, to needle exchangers
> being acquitted of violating drug paraphernalia laws.  And any
> that I forgot.  
> 
> So, it is quite important WHY the jury did what they did, and juries
> are frequently polled in the wake of their verdict to ascertain
> just what was going on in their minds.  I am surprised that a student
> of law seems to be ignorant of this.  
> 
> But even if, as you say, the jury simply makes a "moral decision" with no 
> implication of claiming the moral right to do so, the fact 
> remains that they have the legal power to make that moral
> decision.  It is up to you to show how they can have the legal power
> to make a moral decision, and yet be denied the moral right to do so.  
> 
> Good luck.  There is always room for more tortured reasoning on the net.
> (8-)
> 
>>>>What I was saying here was that I don't think the jury claims a "moral
>>>>right to nullify." Again, I've never heard a juror refer to any such
>>>>thing.
>>>
>>>It is implicit in their actions, if not their words.
>>
>>You confuse your inference with their implication.
>>
> 
> I think you fail to see that an action undertaken for moral reasons
> is done within the psychological framework of it not only 
> being right to do so, but also that there is an overriding 
> right to act rightly.  Right?
> 
> Think about it.
> 
> 
	However, there's something you've forgotten. Does a dictatorship 
gain the right to do something just because it can? Does might make right, 
in other words? What you're saying is that jury nullification is a right 
because it can't be prevented. So? A lot of things can't be prevented, but 
that doesn't make them rights.
	-Allen
Newsgroups: misc.legal,alt.folklore.urban