Today’s Good News

Peter Watts won’t be serving any jail time.

The article does suggest that he’s not going to be able to cross the border any more, however. Which does suck. Now to get to work on that presidential pardon.

65 thoughts on “Today’s Good News

  1. So very pleased, although admittedly not as pleased as if he had been acquitted altogether. (As folks following the story know, Peter was mostly snagged up on a technicality and the jurors were told that the basis for conviction was “Did he resist at all?”) As Peter says himself in the Crawl, in a rational world, the government would have declined to press charges, but since they did, and since the jurors were instructed to go on “Did Peter resist at all?” instead of “Did Peter assault the guard?” (answer: no) ….well, I suppose this is as good as we could expect. (He could have been sentenced for up to two years, and recent reports suggested a more realistic possibility of 2-3 months….so no time at all and paying a fine seems good.)

  2. The article does suggest that he’s not going to be able to cross the border any more

    The sour-grapes aspect of my personality wants to ask, “Does he even care? Why would he even WANT to come back here!?”

    The rest of me realizes that there are logistical concerns, and also that it’s just not freaking fair.

    This is getting rather out of hand. (I’ve got stories, but they’re anecdotal so I don’t feel right giving them as evidence. They do affect my mood and opinions, though.)

  3. from the link: Watts’ ailing brother lives in New York and he often attended conferences and had business dealings in the United States

    So, he’s got a few reasons for coming here.

  4. Well, Mac, his aging (and, I understand, ailing) father lives in New York, so there’s a reason.

  5. Dead and buried, I hope. The problem wasn’t that the jury did its job; the problem was that there was a prosecution at all.

  6. Mac @ 4:

    The sour-grapes aspect of my personality wants to ask, “Does he even care? Why would he even WANT to come back here!?”

    That was also my immediate reaction, but according to the article …

    He added Watts already was being punished before the sentencing had been delivered, because he no longer would be able to travel into the United States with the felony conviction. Mullkoff said Watts’ ailing brother lives in New York and he often attended conferences and had business dealings in the United States. [Emphasis added.]

    So, yeah, that sucks. And not at all in a good way.

  7. A Presidential Pardon requires a confession of guilt, among other things, and might not restore his freedom to cross the boarder.

  8. htom, so howcum Nixon got off easy? I don’t recall Caspar Weinberger or Elliot Abrams making acts of contrition, either.

  9. It makes me sad that the whole thing didn’t get thrown out. That he can’t see his family, that his business is impacted, all because a couple of border guards had delusions of grandeur. I think I will go buy a couple of Mr. Watts’ books (new only). Seems a good and self indulgent way to show support.

  10. Yes, Mark Rich never admitted any wrong doing, and he got a pardon, and the Puerto Rican Terrorists who never admitted any wrong doing also were pardoned by Clinton.

    An admission of guilt is not necessary at all.

  11. Looking at the linked page:

    … In addition, you should bear in mind that a presidential pardon is ordinarily a sign of forgiveness and is granted in recognition of the applicant’s acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or release from confinement. A pardon is not a sign of vindication and does not connote or establish innocence. For that reason, when considering the merits of a pardon petition, pardon officials take into account the petitioner’s acceptance of responsibility, remorse, and atonement for the offense.

    Further, for some legal purposes, it is considered to be a legal confession of guilt. I’m not going to attempt to explain this bizarreness; ask a lawyer.

  12. You know, Johnny, show some effing respect. It annoys the hell out of me that people who freaked out about criticism of Bush feel fine calling Obama “Barry O” and other silly terms. It’s blatant hypocrisy – you want your guy to be respected and treated with civility? Show some to our guy.

  13. For the border crossing difficulties, that can be solved with filing an I-192 with CBP and talking to an immigration attorney. Best of luck.

  14. @20: I don’t know the first blessed thing about immigration law, but I am a lawyer. If Mr Watts wants some free lawyer time to figure out what it takes to get some sort of exception on this stuff, so he can travel for business/hardship/whatever, I’ll be happy to put in a few hours on the house (I’m a solo, so what I say, goes).

  15. This is part of a MUCH larger issue about border crossings and visas and “feriners” and the like – We’ve got several instances of well known folks in the SF community who’ve had this sort of problem (the most public one that comes to mind right now is a friend of ours currently in darkest Somerset).

    The real issue is fixing our bloody immigration issues – so that people who have business here can come and go on a “doing business” visa – and people who are just “visiting” can come and go on a “tourist/visiting friends” visa – and so on. The complete random and often conflicting application of the often conflicting immigration laws is the real issue here.

  16. The larger issue is how to keep out those damned Canadians who take our jobs and don’t speak our official language.

  17. @Twilight2000: ” The complete random and often conflicting application of the often conflicting immigration laws is the real issue here.”

    … and the sociopaths who work on border controls.

    I got so sick of them, I abandoned my green card and haven’t been back to the US in 6 years.

  18. Peter Watts should not have challenged US Border Officials who were actively protecting Canada from hardened criminals trying to escape the US into Canada. It was certainly a mistake on his part.

    As a Canadian taxpayer, I grateful (in a satirical way) to the US taxpayer for paying the salaries of these US Law enforcement officers to protect us in Canada.

    I would be please to have Homeland Security send up more border officials to patrol the border with Canada, makes it more difficult for drug and arms smugglers to smuggle cocaine, heroine and weapons into Canada (and pot into the USA), all being paid by the US taxpayer.

  19. Aw come on RickWhoIsNotThatRick. American politics is and has always been about hypocrisy and name calling.
    As for this whole case I don’t know. I still haven’t decided if law enforcement jobs attract power tripping jerks or if being in law enforcement and dealing with sludge every day turns them into power tripping jerks. Although I have to wonder how much sludge is crossing that border on a daily basis.
    At the same time some civilians don’t react well to the simplest request from LEO’s.
    Or maybe I have spent too much time on the interwebs and am slowly turning into a troll.

  20. #27-“Peter Watts should not have challenged US Border Officials who were actively protecting Canada from hardened criminals trying to escape the US into Canada. It was certainly a mistake on his part.”

    I agree, he will think twice (assuming he is smart) before he mouths off at a official. Glad no jail time etc, that would have been excessive.
    Now if we can figure out how to keep the crazy Canadians out of the country completely we will be set! :-0

  21. I find it extremely distressing that finding oneself in a confusing situation and seeking clarification is viewed as ‘challenging authority’ quickly resulting in assault and a felony charge. The people entrusted with our protection shouldn’t turn out to be the most likely source of danger. I wish it were better here in Canada but I know of far too many situations where individuals in law enforcement have proven themselves to be agressive, excitable and ultimately dangerous.
    I happy that Peter didn’t have to do jail time – really wish he didn’t have to pay a fine.

  22. @mythago #8

    Alas, the entire high school debating world addressed jury nullification for two months this year. You have another generation up and coming of future jurists and jurors who know all about it.

    Why don’t you like it?

  23. @25: The larger issue is how to keep out those damned Canadians who take our jobs

    What jobs ?

    and don’t speak our official language.

    Aggressively ignorant, redneck Tea Party-er ? ;->

    Disclaimer: I’m not suggesting you are anything like the latter – just pokin’ fun at the good ol’ U.S. of A.

  24. Bush and Obama are/were presidents of all of us in the US. Not just Democrats and Republicans. I can’t stand it when people treat politics as football.

    Having said that, being disrepected is part of the gig of being in public office.

  25. Aw, Mythago, John’s out of town and he only said not to get on the furniture.

    Besides, discussing the American jury system and how it corrects the government at the most basic level isn’t reaaaaallly off topic, is it?

    ;-)

  26. True, but he’s going to be mean with that Mallet when he wakes up. Don’t say I didn’t warn you.

    Jury nullification is a way for one person to bypass our entire system of making laws, and of having checks and balances, because they don’t like the result. It’s a one-person veto of our entire system of laws.

    Our laws aren’t imposed on us by a foreign power over which we have no say; we elect legislators, we have courts, we often vote on laws directly. We have a system for rejecting those laws if they violate the Constitution. Jury nullification, in essence, says “I don’t care if the majority’s view on this law won out and it’s consistent with the supreme law of the land; I’m gonna ignore all that and decide what I think the law should say.”

    A lot of people think jury nullification is a swell idea because of John Peter Zenger and draconian drug laws, but conveniently forget that it has a long history of protecting racist violence and the abuse of women.

  27. Jury nullification is a way for one person to bypass our entire system of making laws, and of having checks and balances

    Either that, or it is one of those checks and balances.

  28. I’ve been thinking about jury nullification a bit since this case went all mushroomy. Someone on a thread said that jury nullification is a way to guarantee that the government is no worse than the public at large.

    If you have a bad government charging people with crimes who shouldn’t be charged, jury nullification is a way to circumvent that.

    As mythago points out nullification has been used by some folks to protect racists and other violent individuals from ever being convicted of their crimes. And in that situation, not allowing jury nullification could make that particular situation better.

    But by disallowing nullification, you then have situations where the people on jury are better than the government, and they can’t do anything about. Which means prohibiting jury nullification makes your worst case worser.

    This is one of the basic issues of system design. When you try to compensate for some individual problem, you may make the best case better, but at the same time make your worst case worser.

    Jurys cannot charge someone with a crime. they cannot issue warrants. They cannot start the process for trying to convict someone. The government does that. All a jury can do is, at most, be as evil as the government is. But if the government becomes more evil than the people on jury duty, then nullification would be a checkvalve to prevent someone from being convicted of something they shouldn’t have been charged with in the first place.

    From the perspective of system design as an engineer, I try to focus on minimizing the worst case. And though I will make changes to improve the best case in some particular circumstance, I generally don’t do it at the cost of making the worst case worser.

    but then I spent a few years in aviation, so making your worst case worser might change “single point failure, land at nearest airport” to “cascading failure, everybody dies”.

  29. Brank @39 – jury nullification has no checks or balances that apply to it, much less limit it. That’s part of the problem.

  30. From a system point of view, it acts as a final check against a government’s abuse of power.

    if the government were to, just hypothetically speaking, start to prosecute people for being brown and in the wrong place at the wrong time, a jury trial with nullification would operate as a checkvalve to prevent the government from abusing it’s power.

    And if, just hypothetically speaking, teh government was afraid that juries might nullify the government’s strict interpretatino of law, then the government would be motivated to avoid juries altogether and go with military tribunals, and then you’ve got rubber stamp justice.

    The idea of a jury trial is that the government must present it’s case to the people for the government to be allowed to convict someone.

  31. Greg @43, your example assumes that there is no other possible check on government abuse of power other than jury nullification. That’s a false dilemma.

    What jury nullification does is give a veto without recourse to any person lucky enough to get on a jury.

    *in the context of criminal cases, which is where this usually comes up – civil cases permit non-unanimous juries in some contexts, but other than the numbers, it still works

  32. The good news is that there are waivers and other mechanisms below a presidential pardon that can re-instate his border-crossing privileges. Unfortunately, those may not be timely enough for him to resume visits to his family.

    What he does lose is the “open border” privilege that most Canadians can use to cross without a visa.

  33. your example assumes that there is no other possible check

    The thing is that while the system of checks and balances as spelled out explicitly in the constitution may very well correct when a government abuses its power, every system of feedback has a lag time between perterbation and correction. And the individuals unfortunate enough to be caught in the crush of an unjust government before your checks kick in and fix it aren’t going to feel much better about their personal injustice.

    Put simply, and to tie the original topic back in, need I point out that Peter Watts was convicted of a felony? The fact that he got no jail time doesn’t negate the fact that the government abused its power in convicting him in the first place. The final recommondation was for jail time. And it was a judge’s decision that saved him from that last injustice in a string of injustices. But a different judge may have put him in for months.

    The other possible checks would kick in with a noticable lag and only after he’d served time. At which point, it’s too late for him.

    It’s like the governor of Ohis putting a moritorium on all executions in the state because so many convictions had been overturned with new evidence. Sure, it corrects a problem with the system, but it doesn’t do any good for all the innocent people who were already executed.

    And, finally, and probably most importantly, in the end, what you’re assuming is that a racist asshole who gets on jury duty for a trial charging some white guy of lynching a black man would worry about nullification not being legal. Like it would stop him.

    WHat are you going to do? Create a system of for prosecuting people for what they think? Jury duty is purely subjective in the end. People choose what they choose for whatever reasons are inside their mind. It wouldn’t take long for racists to learn that to circumvent the fact that nullification is illegal in your world all they have to do is say “I don’t beleive you proved your case beyond a reasonable doubt”.

    There’s no way to measure measurable doubt. That’s what juries are for.

    So, you outlaw nullification. Racists figure out a way to run around your law. Meanwhile “good” people like “proudinjun” or whatever her name was, who feels compelled to follow the law, ends up convicting Peter Watts. The government abuse of power is no longer checked by nullification, and the misuse of a bad juryman continues.

    Your solution to make the best case better doesn’t actually make it better (racists will circumvent it) and makes the worst case worse (good people feel compelled to convict on bad laws they feel are unjust).

    A lot of the checks on government are specifically designed to make the worst case better at the expense of making the best case worse. This is sometimes sumarized in the notion that it’s better that ten guilty men go free than one innocent man go to jail.

    You’re not talking about worst case versus best case. You’re talking about “checks adn balances” as if they are the goal in themselves. The goal is to improve the worst case. And if you can make the best case better, without making the worst case worse, then go for it. But saying the goal is checks and balances in and of themselves is missing the reason they are there. It’s missing the design of teh system and why the checks and balances are there in the fisrt place.

  34. So the argument is that people are going to do it anyway, we might as well give it the stamp of approval? Or that because we don’t fix one type of injustice fast enough, that we should bless a whole new system of injustices?

  35. So the argument is that people are going to do it anyway, we might as well give it the stamp of approval?

    Good lord. No. THe argument is this:

    You want to stop racists jurists from letting racist criminals go free.

    You decide that outlawing jury nullification is the solution to that problem.

    You implement the solution.

    But racists jurists figure out a way around it, so you didn’t make that problem any better. And people like proudinjun who respect the law will be compelled by law to convict people like Peter based on a bad law, so you made that problem worse.

    You do not get to argue that there is a problem, we must do something, this is something, therefore we must do that.

    You have to measure the actual effects of your solution. Both good and bad. Both direct and indirect. As it relates to both the problem you try to solve and any problems that it would create.

    And you most certainly do not get to take someone who points out that your solution doesn’t solve the problem and then twist that into approving of the problem.

    Requiring probable cause to convict someone of murder doesn’t mean we approve of murder. Don’t twist my words around into such absolute nonsense as that. Requiring probable cause to convict someone of murder is something put there to try and solve the problem of some civilians going around murdering other civilians while at the same time trying to not create some new problem of the government being able to imprison people for life for having the wrong color skin.

    If the problem is racist jurors letting racist criminals go free, outlawing jury nullification doesn’t actually stop that.

    would you have jury trials to convict jurors of nullification? How would you keep the next level of jurors from nullifying that as well? And if you make nullification trials decided by a judge, doesn’t that mean jurors are put in a potential situation where if they don’t render the decistion that the judge likes, they could go to prison themselves?

    And outlawing nullification makes the problem of the government convicting people on bad laws worse.

    It doesn’t mean I approve of racists letting racist criminals go free. It means I’m pointing out that your proposed solution at attempting to improve the best case, ends up not fixing the best case and makes the worst case worse. So, you have no objective justification for your solution. What you have is a problem and your proposed solution doesn’t actually fix that problem, and makes another problem worse.

  36. Greg, if you want to discuss this, that’s fine. If you’re going to accuse me of twisting your words around and calling you pro-murder, then I really don’t think I have anything to say that you won’t interpret as a disingenous personal attack.

  37. If you’re going to accuse me of twisting your words around and calling you pro-murder

    You said: jury nulilfication “has a long history of protecting racist violence and the abuse of women.”

    I said nullification wouldn’t stop racist jurists.

    You replied So the argument is that people are going to do it anyway, we might as well give it the stamp of approval?

    It’s not the argument you’re talking about there. It’s my argument. And either you were actually confused that I would approve of murder, racial violence, and abuse of women, or you knew I didn’t, but strawmanned me that way anyway, camoflaging it behind the form of a question.

    i.e. so you could say “It was a question, not an accusation, sheesh”.

    So, either you were really and truly confused about whether I was arguring to approve of murder, racial violence, and abusing women and therefore you needed to ask the question, or you knew the answer to your question, but asked it anyway to try to strawman my position.

    Now, I do admit that since you and I have interacted online for some time now that I assumed you knew me well enough to know the answer to your question was obviously no, and therefore you were asknig the question for the second effect: a strawman camoflaged as a question. And I loathe that particular rhetorical device.

    I admit there may be another explanation I didn’t think of to explain why you would ask such a question, but I can’t see it.

    But my question to you is this: Were you really not sure if I was approving of murder, racial violence, and abuse of women? Did you really need to ask that particular question? Do you not know me enough that you had to ask?

  38. “I still haven’t decided if law enforcement jobs attract power tripping jerks or if being in law enforcement and dealing with sludge every day turns them into power tripping jerks.”

    This is my basic and fundamental problem with law enforcement. Sometimes I think the only solution is to make everyone serve as law enforcement of some variety for a short period every few years, so that there’s at least an option for power tripping jerks of any variety to face their peers as equals in cycles.

    Inconvenient? Definitely. I can’t think of any other way to insist the bastards do their job properly though.

  39. Let’s see how the checks and balances worked in Mr. Watts’ case.

    Guards decided to attack him rather than question him.
    Guards arrested him rather than letting him go.
    Prosecutor charged him rather than letting him go.
    Prosecutor demanded bail rather than releasing him O.R.
    Prosecutor did not notify him or his lawyers about a change in appearance date, and then issued a felony warrant for his arrest for non-attendance.
    Prosecutor collaborated with false accusations.
    Prosecutor requested the harshest possible sentence.

    Don’t know what his bail was, but if he went though a bondsman, he’s out whatever he paid, usually 10-20%, so if the bail was $20,000 that would be $1,000 to $2,000. He’s got to pay the lawyer(s). He’s got to pay the fine, and the court fees.

    He’s now a felon.

    And you’re worried about jury nullification? Don’t worry, jury nullification doesn’t actually change the law, it just would have written a one-time exception for this particular case. The next accusees will have the same treatments available.

    I mean, really.

    There are people who reason about the consequences of acts, and then there are people who learn about them from others’ experiences, and then, well, there are people who have to pee on the electric fence be convicted for themselves. Nemesis may have struck Mr. Watts, but she may well have you in her sights now.

  40. Still disgusted with this-my-country’s aggressive paranoia and petty despotism, but hugely relieved that a few good people could mitigate some of the suckiness – enough to let Dr Watts go home a free man.

    Thanks again to our Host for spreading the word!

  41. Nemesis may have struck Mr. Watts, but she may well have you in her sights now.

    Wow. Accusations of bad faith, and now thinly-veiled wishes for ill health. And to think I was just worried about getting the thread off-topic.

  42. When, as you said, there shouldn’t have been a prosecution at all, jury nullification is the last hope — no, the next-to-the-last hope for the innocent (the last hope is a judge that sets aside a guilty verdict; this happens so rarely that Google news gets 181 hits on “judge sets aside guilty verdict”, most of which seem to be appeals cases where the motion was made but it didn’t happen.) The system isn’t perfect. The system can not be perfect. Even with appeals. You can have a system that when it fails, sometimes convicts the innocent, or you can have one that when it fails, sometimes frees the guilty.

    If a prosecutor persists in bringing cases about some matter to juries that then refuse to convict, even when juries are told that they cannot nullify and jurors are dismissed if they say they might, or even know of nullification, perhaps it is the law (or his or her interpretation of the law) that is at fault, not the acts of the accused, and they will stop bringing those cases, or the legislature will change the laws. One case doesn’t have this result; it takes many juries.

  43. Jury nullification was also used to prevent the conviction of people helping slaves escape during the pre-Civil War years, to undermine the Jim Crow laws (how I wish I’d gotten the citation for that one!) and gin runners during Prohibition. It hasn’t always been used to protect the KKK.

    I understand that there are several instances of jury nullification being used in drug cases, in particular the differences in law regarding powered cocaine and crack, because the crack laws were unfair.

  44. Accusations of bad faith, and now thinly-veiled wishes for ill health.

    Don’t forget strawmen disquised as questions.

    So the argument is that people are going to do it anyway, we might as well give it the stamp of approval?

    The argument was and always has been that you’re only justification to outlaw jury nullification is because racists and wife beaters will use it to let off other racists and wife beaters, that outlawing it (1) won’t stop them anyway because it’s so easy to get around (2) creates a meta-jury to convict any jurors of nullification and all the problems associated with that bureacracy, and (3) in situations even worse than Peter Watts, jurors like proudinjun who feel compelled to obey the law, even when it’s bad law, will convict an innocent man.

    So, (1) shows your solution doesn’t actually solve the problem and (2) and (3) show that your solution creates at least one new problem and worsens an existing problem.

    When confronted with all this, you turned it into me saying give violent racists and wife beaters my stamp of approval.

    Thus far, your only “argument” for outlawing jury nullification is post #38 which does nothing other than establish that nullification can be abused. You’ve yet to show how outlawing it would stop a racist jurist. It’s easy to get around for anyone who knows the words to say during any interview.

    And you’ve completely ignored the problem of individuals crushed by bad laws. You’re “solution” of system-level checks and balances doesn’t solve that problem at all.

    It doesn’t solve the problem of racist jurists and it makes it easier for the government to inflict unjust damage on individuals.

  45. The above discussion is kind of pointless. Jury nullification on a single case basis cannot be outlawed without basically getting rid of the jury system itself. No juror can be convicted of contempt or anything else based simply on how they vote (as opposed to accepting a bribe, etc.) If they could, the jury system would no longer serve its function.

    The only thing you can debate is how and under what circumstances “jury nullification” can be advocated in a systematic fashion. There is the the general case of juror rights and then there the case where people call for systematic jury nullification of specific laws for whatever reason.

    For expanding awareness of juror rights, you could pass a law making it illegal for judges to give particular kinds of instructions and/or for attorneys to ask particular questions at selection. Also, you could require that jurors be given a pamphlet which honestly outlines their powers and functions. That, however, would require a political solution when the background to this issue is that politics has supposedly failed and can be expected to continue to fail.

    If you think nullification should be advocated for a particular issue, then you have to ask why this issue and not another? Are you just substituting your judgement for that of the current system’s? (Even if by some measure, your judgement is better, how exactly do we determine that in an objective fashion? And why is the instrument of nullification to be preferred to normal democratic procedure? And/or to judicial review?)

    The jury here could have found Peter not guilty on the facts of this case. According to their account, they thought he was guilty on the facts. They could have decided the law was wrong as written, but that is a high hurdle for most people to jump and juries are selected to diminish that possibility further. The judge could have found the law unconstitutional, but he obviously did not. Dr. Watts’ lawyer could have appealed the case on constitutional grounds; he did not.

    A more interesting issue is that the state chose not to prosecute the officers, even though their testimony was shown to be akin to perjury and that one of them may have committed a battery on Watts before Watts broke the law. I can see why they might turn a blind eye on a practical level, but how do they justify it legally? Perhaps what we need is a way to tinker with prosecutorial discretion rather than with jury deliberations.

  46. There were people above who were kind of dismissive towards the cases of lynch mob nullification. When you set up your “design” arguments, you postulated one racist juror being a fly in the ointment. However, historically, the problem was that the juror represented the values of the majority of the local community. So it was not one case being mishandled, it was a systematic nullification of the part of the legal system which protected a vulnerable minority. Postulating this as “not making the best case better” as opposed to making the worst case worse really depends on your perspective. Is it better to let 10 lynchers free than convict one person wrongly, knowing that this result helped disenfranchise millions in numerous ways? I know what answer your civics text book would give, but the reality of that choice is pretty gritty. (Eventually in the short term, government effectively nullified jury nullification by taking the cases out of the local pool and giving them to “better” juries/communities. In the long term, it was solved by political action to change the public’s opinions. Are you comfortable with the short term solution’s means? Do you have faith the long term will come about?)

  47. Iron: Postulating this as “not making the best case better” as opposed to making the worst case worse really depends on your perspective.

    The perspective is no government versus government.

    With no government: (1) racists will run around lynching people and not suffer any legal consequences, because there is no law. (2) random people will not suffer the consequences of government abuse.

    Now, add government. Did you make it better or worse?

    Say you add a government that outlaws jury nullification. racists run around lynching people but are brougth up on charges. If a racist makes it on the jury, they’re not going to convict the person no matter what you do. So, you didn’t change (1). But then outlawing jury nullifcation means that when people who tend to obey the law end up on jury, they end up convicting someoen like Watts.

    By adding government, you added the situation where Peter Watts was convicted of a felony for asking a question.

    System design requires that you look at all the positives and minuses of the entire system.

    What usually happens with a novice system designer is they focus in on one aspect of the system, they try to fix that one aspect, and then they fail to look at the consequences for the system as a whole.

    So, the perspective for system design is to compare (1) what the environment is like without the system versus (2) what the environment is like with the system.

    You want to stop racist jurors from nullifying case abotu racism, you’re not going to stop him by outlawing nullification. The only way you’ll stop him is if you can remove him from jury selection in teh first place through pre-screening. Lawyers for both prosecution and defesne can eliminate potential jurists for reasons of bias or prejudice. They often have the right to remove a few potential jurists for no reason at all. That isn’t a perfect solution, but at least it works where you have a pool of jurors to select from where most of them are not racist.

    If you have a jury pool that is 90% racists, nothing you invent in your mind and implement in the system is going to stop them from letting the racist accused off the hook.

    That’s another part of design. You have to design a system to account for the existence of bad individual components. That’s why you have checks and balances in the system. Checks and balances are the goal. THe goal is to have a system that operates well even if some of teh individuals have gone rotten. Engineers design amplifiers that give approximately the same qualitity sound even though the individual transistos may have different qualities to it.

    And that’s where jury nullification operates to guarantee that the government is no worse than the population. If the government goes bad, nullification would prevent it from affecting people. It’s a check valve.

    Now, mythago and others will argue that the racist should be convicted no matter what. But the only way to get the “no matter what” is if you’re willing to have a system that can become worse and more abusive than the population it governs.

    The perspective is the environment without the system (government) adn the environment with the system (government). That’s the two points where you weigh whether government is worse or not.

    And if goverment makes something worse, then government shouldn’t be doing that.

  48. Greg. My main point @59 was that debating “outlawing” single case “jury nullification” is kind of silly. So your long treatise on system design revolving around whether to outlaw jury nullification was mostly pointless.

    Then I addressed two different approaches to systematic jury nullification and their ramifications.

    I brought up the lynch mob case @60, just because I wanted people to think about what the textbook answers to these questions mean in actual situations. I do not pretend to know in an abstract, objective way whether systematic jury nullification would be better than other solutions. My guess is that I would make that decision based on the specifics of the circumstances and my answer would be grounded in my own position. In other words, like almost everything else, it would be a political, self interested decision.

  49. To put it a little more concretely: the government is not going to outlaw juror independence anymore than it is going to tell you, as a matter of law, who to vote for. In the latter case it just convinces the average citizen they are constrained to vote for one of two candidates vetted by an assortment of vested interests and institutions, while marginalizing other possibilities. Here, the legal system convinces the average potential juror of his relative powerlessness and marginalizes anyone who does not look they are going with the program. On the one hand it appears very sinister; on the other, it is hard to imagine that any established system of government would not develop equivalent entrenched practices/strategies.

  50. I do not pretend to know in an abstract, objective way whether systematic jury nullification would be better than other solutions.

    Well at least you admit it.

    My guess is that I would make that decision based on the specifics of the circumstances and my answer would be grounded in my own position.

    A robust, stable system would be designed from the perspective of not knowing whether you’re going to be the judge, the jury, the accused, the prosecution, or some bystander.

    Designing it from the point of view of “I’m on the jury, therefore the system should be built this way” or “I’m a cop, therefore the system should be built this way”, isn’t really system design, it’s just camoflaged opportunism.

    like almost everything else, it would be a political, self interested decision.

    Based on that, I’d guess that you’re a republican. Add in your side comment about the two party system, I’d guess you’re a libertarian. Either way, clearly in the conservative side of the political spectrum.

    It certainly is the conservative perspective of the world, have everyone act in their self interest and it will all magically work out.

    My perspective on the system is slightly different than that. I see it as something people agree to ahead of time, not knowing which side of the hammer they’ll be on, and when the hammer comes down, they’re held to their agreement. So, people agree to abide by the constitution, not knowing whether they’ll be the arresting officer or the guy who got arrested. Which means they try to agree to something inherently fair not something inherently selfish.

    But to each his own.

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