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A follow-up
james_nicoll
Peter Watts' comments

One of the early commenters claims to be one of the jurors, saying that Watts's speculation isn't wrong. Interesting.

Very much so.

I'd be interested to see how the jurors approach the media either as solos or as a group.

Lots of comments there insisting that jury nullification is both legal and morally obligatory, which was not my understanding at least in the former case. (I'm pretty sure that flagrantly disobeying a judge's instructions when on a jury is not legal. The question is just how willing, as a juror, I'd be to go to jail in place of Watts.)

If the jury fails to comply with the judge's instructions, they end up in jail? For obstructing the judge in the execution of his lawful duty? That doesn't seem right.

Well, judges have pretty wide latitude to find people in contempt of court.

According to this analysis by a blogger at the Cato Institute, "even though many modern court rulings express hostility toward jury nullification, no court has yet dared try to reverse a not guilty verdict or attempt to punish any juror who cast a not guilty vote in a jury room where the result was deadlock". (It's an analysis of the statement of a judge justifying his removal -- but not jailing -- of a juror for questioning the constitutional basis of drug laws in a cocaine possession case.)

A quick googling for "juror jailed" turned up cases where a judge jailed a juror for talking, texting, lateness, and similar things, but not for nullification.

I don't agree that jury nullification is morally obligatory, and I'll go so far as to suggest that it is in bad taste to second-guess a jury when you weren't in the courtroom yourself and probably even if you were.

It's legal, though, although its use is on the wane and jurors are not instructed in the courtroom that they have the right to execute it. (However, I can say as a New Yorker that when I sat on a jury last year our orientation video spent quite a bit of time on Peter Zenger and pointing out specifically that we are the ultimate decision makers.)

According to a little research myself, it would appear that the worst that would happen to a lone vote for nullification is a frank talk with the judge and ultimately dismissal from the jury in some jurisdictions. Like others have said, I think we'd hear about it if it were cause for a contempt charge. On the other hand, a couple votes might turn into a hung jury / mistrial which would force the prosecutor into re-evaluating just how weak this case was without the choking charge and not seeking a retrial.

When I sat on a jury as a second alternate during a criminal trial, right here in Queens, there was no such video about Peter Zenger. The judge explained that he was the judge of the law, and that we were the judge of the facts, and that if we could not judge the facts impartially, we should ask to be excused.

The New York State Court of Appeals ruled on the concept of jury nullification in the case of People v. Goetz, 73 NY2d 751 (yes. Bernie Goetz), saying:
While there is nothing to prevent a petit jury from acquitting although finding that the prosecution has proven its case, this so-called “mercy-dispensing power”, as defendant concedes, is not a legally sanctioned function of the jury and should not be encouraged by the court.


They spoke more clearly in a case called People v. Mussenden, 308 NY 558. when the great Justice Fuld wrote:
It follows, from what has been said, that, while the jury has the power to refuse to find any fact regardless of how clearly it may appear to a judge to have been proved, the jury does not, so to speak, have the right to find a fact and then refuse to render the verdict which such a finding necessarily requires. As is manifest, merciful, or weak jurors may disregard even overwhelming proof of culpability and acquit entirely or convict of a lower crime than the evidence reflects. But that, it has been correctly observed, is ‘their responsibility, and not the court's.’ People v. Randazzo, supra, 127 App.Div. 824, 825, 112 N.Y.S. 104. There is probably no way to prevent or guard against this, but certainly a court should avoid doing anything, such as submitting lower crimes in an inappropriate case, that would constitute an invitation to the jury to foreswear its duty and return a compromise or otherwise unwarranted verdict. Or, to express the matter in somewhat different terms, the jury's power to dispense mercy, by favoring the defendant despite the evidence, should not be allowed so to dominate the trial proceedings as to impede or interfere with the jury's primary fact-finding function.


Wow, I'm greatly surprised that the orientation video wouldn't have been statewide. I've got to say that you missed a good show; I don't think I've ever watched a more entertaining mandatory video. It was clearly created in conjunction with the Court of Appeals and had Chief Justice Judith Kaye's stamp of approval on it, and while the video was slightly dated, I'd bet anything it was post-Goetz. But I will say that we watched the video in the jury pool room and in the actual courtroom I heard a very similar lecture from the judge on how we were to be impartial and facts-based.


Keep in mind that “failure to comply with a lawful command” is one of those utility laws, sort of like a woman's "little black dress" -- suitable for any social occasion. If you're charged with it, you're pretty much doomed.

And before someone asserts the racial superiority of Canadians (or Britons, or the Franks, for that matter), you'll probably find a similar law in the books of nearly every nation.

That's the nature of government. Challenge it and it'll kill you.

Agreed. Now let's see if a contribution towards Watts' appeal qualifies as a challenge.

I can't see such an interpretation of the RICO statute being allowed to stand.

Probably would be an international terrorist conspiracy, though. That way, you don't have to worry about petty concerns of habeas corpus and legal representation . . .

Or even charges and indictment, for that matter.

So, USA PATRIOT Act "reinterpretation", then?

Well, it sure *looks* like an attempt to subvert the very basis of Western Democracy . . .

Go on to read his next post -- he talks more specifically about what happened in court.

Speaking of which, could someone with a journalfen account go drop this link into the comments of this post? thanks in advance.