From: ald@clipper.ingr.com (Al Date)
Newsgroups: misc.legal,talk.politics.misc,talk.politics.theory
Subject: Re: Jury Nullification -- The Power is a Right
Summary: I may not see your response, send to email (8-)
Date: 7 Oct 92 22:03:11 GMT
Organization: Intergraph Advanced Processor Division - Palo Alto, CA

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:
>
>>>I said nothing about moral grounds.
>>
>>So on what grounds do you suspect that juries decide to acquit people
>>in spite of the law and the facts?  Extraterrestrial intervention?
>
>I have already answered this question, as any careful reader would know.

Any careful readers out there care to enlighten me?  Where is Ed Nilges? 

>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.


--Al Date

And rightly so, I might add!  Write soon!
Newsgroups: misc.legal,alt.folklore.urban