Law & Justice: July 2005 Archives

As a nearly immediate follow-up to my earlier post today on jury nullification, let me post a link to a discussion about the topic at Patterico's Pontifications, where many smart people I otherwise agree with on many issues are decrying jury nullification as "jury misconduct". Frankly, I'm amazed that many of the same people who support the right of citizens to carry weapons feel threatened by the power of juries to judge laws as well as facts. Reading the comments, jury nullification opponents pose arguments against the power of nullification that are nearly identical to the arguments of those who want to ban guns. They don't trust the public to act as a check on the government.

Like carrying guns, jury nullification is a power that can be used for evil as well as good. That should go without saying, and yet many anti-nullification arguments seem to focus on the instances in which nullification was used to, for instance, acquit whites who lynched blacks. That's obviously a wrong use of the power. But just as guns are important to freedom despite ocassional misuse, jury nullification is also important despite the cost of occasional misuses.

The main difference between gun use and jury nullification is that someone who misuses a gun can be prosecuted and punished if guilty, whereas a juror who nullifies unjustly cannot be touched by the judicial system. Perhaps social punishment is enough to deter unjust jurors, but if that's not the case then maybe we should just pass a law that allows jurors to be prosecuted for nullification. Then, when those jurors are tried, a new jury will be empowered to judge their actions and render a verdict. The trial in which nullification was initially used would be untouchable, but jurors could be punished individually if their peers later believed that their nullification was unjust. Such a system would impose a cost on jurors for nullification and give them an incentive to use the power rarely and only when they believe that their peers will back them up.

Radley Balko has an article that illustrates both the importance of the power of jury nullification and the injustice that ocassionally plays out when our justice system refuses to allow jurors to decide what information is relevant.

In February of 2003, a California jury convicted marijuana activist Ed Rosenthal of growing marijuana, in violation of federal law.

What the jury didn't know — and wasn't allowed to hear — was that Rosenthal was not only growing the marijuana for medical patients, he was growing the stuff for the city of Oakland. After the trial, the jury was outraged. "'I'm sorry' doesn't begin to cover it," one told the New York Times. Said the foreman, "It's the most horrible mistake I've ever made in my entire life."

Ignore for the moment whether or not you believe marijuana should be legal, or whether it should be regulated by the state or federal governments, and consider the reaction of that jury foreman once he learned all the information about the case he had just decided. The jury was manipulated by the judicial system into returning a verdict that was technically correct under the law, but was actually horribly unjust in the minds of the jurors. They never would have convicted if they had known all the facts of the case. Imagine yourself in that position, sentencing someone to a potential life in prison, and then later discovering that you had been misled. That's why jury nullification is so important.

The doctrine of jury nullification (search) rests on two truths about the American criminal justice system: (1) Jurors can never be punished for the verdict they return, and (2) Defendants cannot be retried once a jury has found them not guilty, regardless of the jury's reasoning. So the juries in both the Rosenthal and Paey cases could have returned a "not guilty" verdict, even though Paey and Rosenthal were undoubtedly guilty of the charges against them.

This may sound radical, perhaps even subversive, but jury nullification serves as an important safeguard against unjust laws, as well as against the unfair application of well-intended laws. It's also steeped in American and British legal tradition.

The first case of jury nullification in British law came in the trial of William Mead (search) and William Penn (search), the latter of whom would go on to found the province of Pennsylvania. In 1670, the two men were charged in England with unlawful assembly, a law aimed at preventing religions not recognized by the Crown from worshipping. Both almost certainly broke the law, and the judge demanded a guilty verdict. But the jury refused, on the grounds that the law itself was unjust. After repeated refusals, the judge ordered the jury imprisoned. England's highest court eventually ordered the jurors released, establishing into common law the independence and integrity of juries in criminal cases.

Jury nullification isn't about anarchy or subverting the law, it's about ensuring that the laws reflect the will of the people. Remember, America is a Democracy and our government operates only with our consent. If a prosecutor can't convince a fully-informed jury to make a conviction, then the problem is with the law, not the jury.

(HT: Randy Barnett.)

DeoDuce comments on a recent example of modern "tolerance" in which offending a leftist is the greatest crime imaginable but offending a rightist is mandatory for the preservation of liberty.

Some people are making a big deal about the order for London police to shoot to kill suspected bombers, particularly in the wake of last week's horrendous wrongful shooting.

LONDON (AFX) - British police remain under orders to shoot suspected suicide bombers in the head if necessary, London's police chief Ian Blair said, despite having mistakenly killed an innocent man.

When asked by Sky Television if the police had shoot-to-kill instructions in such cases, Blair replied: 'They have to be that. Because there's no point in shooting at somebody's chest because that's where the bomb is likely to be.'

He added: 'There's no point in shooting anywhere else because if they fall down they detonate it. It is drawn on the experience from other countries including Sri Lanka.'

To the best of my knowledge, all American police forces shoot to kill when they have to shoot, so this policy shouldn't be particularly startling to us Yanks. The only problem I have with shooting bombers in the head is that heads are hard targets to hit and most London cops don't have much weapons training. Shooting explosives could set them off, depending on the type, so the policy does make sense.

In the software industry it's very common for employees to sign non-compete contracts as a hiring condition. The contracts generally state that the employee agrees not to accept a job for a year or two with a second company that's similar to the job he's taking with the first company. The point is that the hiring company wants to make sure their new employee doesn't get a bunch of information and knowledge and then immediately take it to a competitor. I'm not a lawyer, but my understanding (based on many conversations with fellow engineers) is that such contracts are not really enforcable in California due to "right to work" laws that prevent contracts from forcing a person to keep a job or to not accept a new one.

Still, regardless of what the law says, I think that a person has an obligation to fulfill an agreement they enter into willingly as long as the other party holds up their end of the bargain. For example, even though Microsoft's suit against Google over "executive poaching" will probably fail, I'm entirely sympathetic to their claim.

SEATTLE (AP) - Microsoft Corp. (MSFT) sued Google Inc. (GOOG) on Tuesday, accusing it of poaching a top executive the search engine company had wooed away to head a new research lab in China.

The Redmond-based software power also sued the executive, Kai-Fu Lee, whose appointment Google trumpeted in a news release announcing the lab's establishment.

In a complaint filed in King County Superior Court in Seattle, Microsoft accused Lee of breaking his 2000 employment contract, in part by taking a job with a direct competitor within a year of leaving the company.

Microsoft also accused Google of "intentionally assisting Lee."

"Accepting such a position with a direct Microsoft competitor like Google violates the narrow noncompetition promise Lee made when he was hired as an executive," Microsoft said in its lawsuit. "Google is fully aware of Lee's promises to Microsoft, but has chosen to ignore them, and has encouraged Lee to violate them."

Even though it's unlikely that the government will enforce the contract, it seems clear based on the article that Lee is violating his promise to Microsoft -- a promise he gave freely when he signed the contract. It's dishonorable to break your word, even if the law won't force you to keep it.

Following up on my earlier post about ignorant judges, I think it would be useful to have specialized judges who know more than just the law. I believe there are special judges for things like contract law, but we probably need something similar for technology. I can't find many resources on the web about specialized judges, probably because they vary from state to state, but I'd be interested if anyone can provide some information.

Unfortunately, I don't think the problem can be as easily solved by blogging as was the ignorant journalist situation. Amateur journalism by experts is great and contributes enormously to our civilization, but I doubt amateur judges would be as effective.

One idea I've got is that there could be a panel of amateur judges. Rather than voting to resolve an issue, as one might expect from a panel, each judge would write a decision and then the litigants could then pick from those decisions and decide together which one to adopt.

My brother sent me a link with a nice summary of California gun laws. It has entries for other states, too.

The Full Disclosure Network has a great video blog entry comparing the views of two Southern California sheriffs on concealed weapon permits. Los Angeles Sheriff Lee Baca admits that he only gives permits to celebrities and government officials, which is an explicitly illegal policy. On the other side, Orange County Sheriff Michael Carona explains why "right to carry" laws are important and can help reduce crime. I've had my own CCW adventures, and I strongly believe that Californians would be safer if more law-abiding citizens were armed.

You're the governor of a state that's about to execute a murderer who also happens to be a brilliant surgeon. On the eve of the execution you receive a letter from an ill citizen who needs some expensive surgery that he can't afford, but that falls within the specialty of your condemned prisoner. The citizen says that the prisoner has agreed to perform the surgery for free before his execution, but that he'll need access to surgical facilities and a week or so to prepare. Do you postpone the execution and allow the surgery?

If you decide to postpone the execution, how do you deal with the unending stream of pleas for free surgery that follows the first? The condemned man is eager to stay alive, and is willing and able to continue performing surgeries. How do you deal with other prisoners on death row who don't have such highly-demanded skills but are willing to do any kind of work that will allow them to postpone their own executions? How do you deal with the families of the victims who become enraged by the postponement of justice?

If you decide to go ahead with the execution, do you help the letter-writing citizen or ignore him? If you help him, how do you deal with the flood of letters that follow? What do you say to dying people who might have lived if they had had access to the indentured surgeon?

To celebrate the birth of a nation based on freedom and liberty, California has banned smoking in prisons starting today. (The link goes to a Seattle Times version of the LA Times article since the original is behind a registration barrier.)

FOLSOM, Calif. — Doing time in a California state prison won't be quite the same beginning today. Inmates, once given tobacco and matches along with their prison blues and toothbrush, will now be forbidden to smoke.

Born of legislation passed last year, the tobacco ban was sold as a boon that would offer a big drop in prison health-care costs and clean air for inmates and officers who don't like to light up. The Republican assemblyman who pushed the ban last year predicted it would save $280 million a year.

Actually, when you point out that my taxes were being used to pay for inmate health care, the ban starts to sound like a much smarter idea. Then again, I've long been a fan of creative punishments that could save us lots of money and reduce crime at the same time.

Back when the measure first passed the Assembly last year, Josh Barkin thought it was a bad idea because cigarettes keep the prisoners "satiated".

These laws -- which are becoming commonplace -- are ridiculous, for a number of reasons. First, letting prisoners smoke gives them something to do, and it keeps them satiated. Second, any money saved on prison healthcare has got to be balanced out by the cost of [a] helping these inmates quit (nicotine patches, for example), [b] dealing with the increased agitation resulting from prisoners who've smoked for years suddenly not being allowed to.

I've got an idea! Why not cut out the nicotine but pass out heroin? Mr. Barkin does make a good point, though, about the dire need to reduce the prevalence and acceptability of prison rape.

Meanwhile, Brad Rodu says that inmates should be switched to smokeless tobacco.

There is a very simple alternative to a complete ban on tobacco and nicotine: Corrections officials should offer smokers alternatives in the form of smokeless tobacco. Smokeless tobacco satisfies smokers and serves as an effective permanent substitute, because it rapidly delivers a dose of nicotine comparable to that from smoking.

For comparison, nicotine medications provide only about one-third to one-half the peak nicotine levels of tobacco products, which is unsatisfying for many smokers. In addition, medicinal nicotine is expensive and designed to be used only temporarily. All of these reasons are why nicotine replacement has a paltry 7 percent success rate among American smokers.

Smokeless tobacco use is vastly safer than smoking, which is entirely consistent with the stated health goal of Leslie's bill. Our research documents that smokeless use imposes only about 2 percent of the health-related risk of smoking. The only consequential adverse health effect from long-term smokeless tobacco use is oral cancer, but even this risk is much lower than that associated with smoking.

In fact, the average reduction in life expectancy from life-long smokeless tobacco use is only 15 days, while the average smoker loses almost eight years. For further context, the risk of death from long-term use of smokeless tobacco (12 deaths in every 100,000 users per year) is about the same as that from driving a car (15 deaths in every 100,000 users per year).