Lee Einer wrote:
<<SNIP>>
>> I suspect that the term "reasonably infringe" is not one you would find
>> in the instructions to a jury. Reasonable doubt that an act is committed
>> would be in the jury instructions. The term "reasonably infringe"
>> normally comes into play when discussing the tension between personal
>> liberty and the liberties of others. Additionally, you lose the term
>> "reasonable" in the following sentence-
<< SNIP>>
Whether jury instructions are correct or not, the duty of a jury is quite clear, and a jurist has the responsibility to educate themselves; the Judge's instructions are always secondary to the law itself.
Reasonable has to do with the concept of reasonable doubt. If I saw the scenario you described, and lacked further corroborative evidence presented to suggest culpable involvement with the illegal substance, I would, reasonably, wonder if the material had not merely been tracked in stuck to the shoes of a passenger, or blown in by the wind while driving with open windows. This would lead me to believe that guilt is in doubt, and the accused is, under US law, therefore innocent.
If there is no question that a person infringed a lawful statute, then that person is guilty, and the jury must, as their civic duty, find them so. It is not up to a jury to judge the law, or to show mercy. Mercy is the province of the judge, or of the executive branch, the jury merely weighs the facts against the dictates of law. I may not always like that, but I'd rather have a jury that dispenses blind justice than a subjective jury who decides whatever they feel like (I'm far more likely to be oppressed by the latter).
>> Well, I can see that you're quite impassioned about this, and the issue
>> of jury nullification is one to which there is obviously some difference
>> of opinion. Historical fact, however, is not a matter of opinion but a
>> matter of record. This, from a law school website-
>> http://www.law.umkc.edu/faculty/projects/ftrials/zenger/nullification.html
>
>> "Early in our history, judges often informed jurors of their
>> nullification right. For example, our first Chief Justice, John Jay,
>> told jurors: "You have a right to take upon yourselves to judge [both
>> the facts and law]." In 1805, one of the charges against Justice Samuel
>> Chase in his impeachment trial was that he wrongly prevented an attorney
>> from arguing to a jury that the law should not be followed."
>
>> You can also read a summary of the history of jury nullification in the
>> US here-
>
>> http://www.personal.psu.edu/faculty/j/p/jph13/JuryNullification.html
>
>> Not interested in a flame war over this, just want to bring to your
>> attention the fact that, for better or worse, jury nullification has
>> been with us since the country was founded.
I did not claim that there is no precedent for jury nullification, only that the jury is not, and was never, entitled to it. Jury nullification entered the legal process in the same way that judicial review did, via pure judicial fiat, and Jefferson, among others, decried them both. The purpose of the Constitution was to place the law above all persons, with no exception, including judges and juries. If the law is believed to be unjust, the duty of the people is to change it legislatively. If they cannot follow the law and their conscience, then they must follow their conscience, but they must also accept the legal consequences, that's a moral and ethical issue, not a legal one. The Law MUST stand alone in judgment of all, or citizens have no defense against the private whims of their
rulers (currently that's judges). The moment we accept the (seized) authority of a judge or jury to change law, we further accept, as a natural consequence, our complete subjugation, without recourse, to those same entities. This is plain logic, and we've seen the application quite clearly in our own lifetimes. I may find many laws completely insuperable, but I will defend, with my last breath, the sole right of the elected, and accountable, legislature to create and modify it.
Jury nullification, like judicial review, is unacceptable in light of the clear meaning of the Constitution. Just because we've had them for some 202+ years is no reason to accept them as-is. Our ancestors lived under a judicial presumption of guilt for something close to 2100 years (dating at least back to Draco the Elder), and the Constitution reversed that too. I don't like bad law, and I do what I can to change that. The problem is, I find the concept of any group of people, no matter how large or small, placing themselves above the law, to be absolutely terrifying. People can be, and frequently are, inconsistent and unfair. The law, at least, is stable and fair. It may be bad, and groups of people may be bad too (think american slave owners circa 1850), and it may be APPLIED
unfairly (I fully agree that inconsistent prosecution is a very bad thing), but at least I can expect the law itself to be consistent and fair, regardless of the ebb and flow of human opinion.
I cannot stress this enough; the only entity in our system of government entitled to create, change, or strike-down a law is the elected, accountable, representative legislature. Any other entity that attempts to usurp that power is just that, a usurper, and should be, in accordance with the Constitution, removed from office and tried for high crimes against the state. It is all the more offensive when the entity that usurps power in this way is the very entity charged with defending the law as written, the judiciary, and the reaction among the elected representatives should be all the more vigilant in response. Our elected representatives in Congress have neglected this vital duty for far too long, and it is our duty as citizens to demand that they fulfill their proper duty, and reign
in the out-of-control courts, sharply, and without further delay.
---------------------------------------------------
PLUG-discuss mailing list -
PLUG-discuss@lists.plug.phoenix.az.us
To subscribe, unsubscribe, or to change you mail settings:
http://lists.PLUG.phoenix.az.us/mailman/listinfo/plug-discuss
(text/plain)