Jury nullification in South Dakota

[griz]

This story is from the Libertarian website:
http://www.lp.org/lpnews/0209/amendmenta.html

It sounds like a good idea, to let the defendants argue to the jury that the law is unreasonable instead of arguing guilt. Although the article doesn’t mention it, the genesis of this is a marijuana charge. I do wish drugs were not the battleground for this fight.

Some lines from the article:

Titled "Initiated Constitutional Amendment A," the measure allows defendants to debate the merits of a law — as well as the facts of a case — in a criminal trial.

In other words, defendants could present evidence to a jury that a law under which they are charged is flawed, or has been wrongly applied, or that the statutory punishment is too harsh.

The amendment is "aimed at the spate of victimless crimes that legislators have passed over the years," said Newland, a former State Chair and the 2002 LP candidate for attorney general.

"If we can end convictions for victimless crimes, we will indirectly enact a lot of the party's platform that calls for the repeal of those laws," he said. It could achieve "almost everything I've ever hoped to achieve by running as a Libertarian."

 

[jimpeel]

This should make the people at http://www.fija.org ecstatic.

One step at a time.

 

[The Plainsman]

What's sad is that U.S. juries already have the right of "jury nullification" and don't really need the state to pass any legislation to "allow" it.

If you want to see a trial lawyer or, even better, a judge, clam up - just ask them about jury nullification. My wife works for a district court judge and when we go to social functions that include all the other judges of the judicial district, I love to quietly wander through the crowd, asking the various judges to comment on "jury nullfication". I have yet to get even one of them to do it.

Although I'm a firm believer in our jury system and that it's every citizen's duty to serve when called, if you ever want to guarantee that you'll be excused from jury duty, just ask "what is jury nullification?" while they're doing jury selection. I've even heard of a judge declaring a mis-trial and excusing all the jury candidates and calling a whole new list, when one of the prospects asked about jury nullification.

 

[JerryM]

In some ways I like jury nullification. However, I wonder if it could not be used to excuse the finding of the "Good old boy" not guilty.

What if it had been decided that the laws against racial discrimination were thought to be not legal, and the KKK was given free reign?

I am afraid that this is a two edged sword.

It is too simple to say "Just change the law' because we know that it is very difficult kto change any law. Therefore, I like the JN. However,I am afraid that it is frought with danger.

We would like it if some gun law had been broken that infringed on RKBA. But what if the law said it was OK to defend oneself, but the jury disagreed with that fact, and found the one who defended himself guilty because they did not like the law? Maybe it has to be a case where the defendent pleads it.

I would be interested in the comments by someone who knows much about JN in the situations I have mentioned.
What keeps it from being abused by those who happen to like the crook?

Jerry

 

[RickD]

"I like jury nullification. However, I wonder if it could not be used to excuse the finding of the "Good old boy" not guilty."

With a randomly selected jury, (not voir dere stacked by prosecutor and jugde) the chance of getting a KKKer acquited is slim. A hung jury, yes, since that only takes one vote (and the prosecution can then retry). Assuming 50% support for a law (I am assuming 50% racists in the jury pool, just for argument), the chance of not having at least one person who will vote to acquit is .5^12 or a small fraction of 1%.

And besides, a racist does not need the permisstion of the state to vote to acquit.

Juries judging fact and law were supported by the Framers because it was a protection against tyrannical government. It is also found to be protected in the Constitutions of Indiana, Maryland, and Texas (and others, I would guess).

For a long discussion over at the FAL-Files
http://www.falfiles.com/
go to the Legal and Political Forum
http://www.falfiles.com/forums/forumdisplay.php?s=&forumid=15
And look up the math of juries
http://www.falfiles.com/forums/showthread.php?s=&threadid=49714&perpage=30&pagenumber=1

 

[jimpeel]

However, I wonder if it could not be used to excuse the finding of the "Good old boy" not guilty.

Was William Penn a "good old boy" when the jury nullified the laws against heresy? If they hadn't, there would be no such state as Pennsylvania today.

 

[LawDog]

Jury nullification always brings two things to my mind: the impeachment of William Jefferson Clinton, and State of California v. Orenthal James Simpson.

LawDog

 

[RickD]

No, sir Mr. Lawdog.

The OJ jury was not a randomly selected jury. It was voir dere stacked. Can you imagine a random jury out of the telephone book having a vote in the OJ trial of 12 to 0 for acquittal? The best OJ could hope for was a hung jury, and the prosecution would try him again.

However, the Senate does have some parallels. A jury that exercises its right to judge fact and law, as the Senators must surely have known that they had serves as a protection against a political trial.

Political trail? Trying a black man for eating at the whites-only lunch counter. Trying Penn or Zenger for example.

If a law has high support (such as laws against murder), the chance of having just one juror who is against the law is slim. Let's assume 99.99999% support for a law. The chance that a jury would be free of hangers would by .9999999^12. Very small indeed. But what if the law had only 50% support, like lunch counters in Mississippi? .50^12 gives us a 0.001% chance that there would NOT be a hanger on the jury. Blacks would vote no over and over again, likely some whites.

Like it or not, even the Clinton Impeachment trial was a political trial, just as the Framers predicted one would be. They didn't need one Senator to hang, just 1/3rd of them.

Rick

Rick