Wednesday, March 26, 2008

Are Wire writers promoting jury nullification guilty of aggravated perjury?

Reacting to writers from the brilliant TV series, The Wire, promoting jury nullification in drug cases in Time magazine, a Texas prosecutor submitted a guest piece over at Defending People to express his view that the writers, had they made the statements, in Texas, would be guilty of aggravated perjury by virtue of suggesting that others violate their jurors oath. Go read it for yourself and see what you think of the argument.


Ron in Houston said...

Be careful here Grits. The Harris County gestapo is probably convening right now to indict that evil Mark Bennett.

You could be next.....

Michael said...

If I were a prosecutor who couldn't identify the elements of perjury, I'd post anonymously too. A juror's oath contains no "statements", as that term is defined by Section 37.01 of the Penal Code. It's a promise, not testimony.

Anonymous said...

From the Guest Blogger:


You might want to re-read 37.01(3). "Statement" means any representation of fact. Doesn't mention testimony. In addition, jurors are also sworn to tell the truth before jury selection even begins.

But I love the way you end. "It's a promise, not testimony." As if that makes it okay! Is that all an oath is worth to you? If so you might consider posting anonymously as well.

Michael said...

I've reread Section 37.01(3). Did you reread it before your last post? Asked in a different way, had you read it before your original post at Mark's blawg?

I never said making a promise that you don't intend to keep is "okay". I said that a promise is not testimony. Let me be more precise there: a promise is not a "statement". It is not a fact that has present truth or falsity.

It's not a question of what an oath is worth to me. Personally, I see little value in oaths, because in my experience, people who lie do so whether they're under oath or not, and the paucity of appellate authority on perjury suggests that the crime is not prosecuted nearly as frequently as it could be. I can't remember a jury trial I participated in that didn't have two witnesses whose testimony was directly contradictory. Both of them took an oath. The jury believed one of them. But there were no prosecutions for perjury.

The question, though, is what is an oath worth to the Penal Code, not to me. So far, the Penal Code doesn't think violating an oath is a criminal offense.

By the way, is it okay if I guess you're anonymous c?

W W Woodward said...

The anonymous writer of the guest blog seems to presuppose that a prospective juror would enter the courthouse with an intent to circumvent the penal code and would take the juror's oath (? Constitutionaly authorized ?) never intending to abide by the oath.

Take a look at some statements attributed to some pretty influential people:

U.S.vs Dougherty, 473 F 2nd 113, 1139, (1972)
[The jury has an] unreviewable and irreversible acquit in disregard of the instructions on the law given by the trial judge...The pages of history shine on instances of the jury's exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge; for example, acquittals under the fugitive slave law.

"The jury has a right to judge both the law as well as the fact in controversy."
John Jay, 1st Chief Justice, United States supreme Court, 1789

SAMUEL CHASE (Justice, U. S. Supreme Court and signer of the Declaration of Independence; in 1804): "The jury has the right to determine both the law and the facts."

"the jury has the power to bring a verdict in the teeth of both law and fact."
Oliver Wendell Holmes, U.S. supreme Court Justice, 1902

"The law itself is on trial quite as much as the cause which is to be decided."
Harlan F. Stone, 12th Chief Justice, U.S. supreme Court, 1941

Jurors should acquit, even against the judge's instruction...if exercising their judgment with discretion and honesty they have a clear conviction the charge of the court is wrong.-- Alexander Hamilton, 1804

It is not only the juror's right, but his duty to find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the instruction of the court.--John Adams, 1771

It will be of little avail to the people that the laws are made by men of their choice, if the laws are so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they... undergo such incessant changes that no man who knows what the law is today can guess what it will be tomorrow-- James Madison

At the end of World War II, in the Nuremberg trials, Americans told Germans that they should have followed their conscience instead of their government when it did wrong. Yet, in America’s courtrooms today, judges routinely tell jurors to follow the government, not their conscience. This courtroom practice is fundamentally un-American.

4TH CIRCUIT COURT OF APPEALS (United States v. Moylan, 417F.2d1006, 1969): "If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence...If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision."

Justice ROBERT H. JACKSON (Morisette v. United States, 342 U.S. 246): "But juries are not bound by what seems inescapable logic to judges."

U.S. v. WILSON (629 F.2d 439, 443 (6th Cir. 1980): "In criminal cases, a jury is entitled to acquit the defendant because it has no sympathy for the government's position."

Justice WHITE (WILLIAMS v. FLORIDA 399 U.S. 78, 90, 1970): "the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group's determination of guilt or innocence."

Apparently these people seemed to believe that a juror MUST look at his conscience and determine not only the facts of the case but also whether the law applies or should apply in the instant case.

A jury whether a grand jury or a petite jury should not be a prosecutor's rubber stamp.

Go back and take another look at the elements of the offense of perjury keeping in mind that EACH element of the offense must be proved beyond a reasonable doubt. Does the word "culpability" mean anything to you.

Anonymous said...

From the Guest Blogger:

To w.w.woodward

First of all, my compliments on a well-reasoned, well-researched post.

The quotes you cite are worthy thoughts from some worthy personages. Having said that, not all of them deal specifically with jury nullification.

I would also respectfully submit that you omitted any cases from the last 30 years or so, during which time jury nullification, always a murky and dubious idea at best, has been frowned on and discouraged with increasing frequency. Check these cites:

In 1988, in U.S. v. Krzyske, the jury asked the judge about jury nullification. The judge responded "There is no such thing as valid jury nullification." The jury convicted the defendant, and the judge's answer was upheld on appeal.

In 1997, in U.S. v. Thomas,[20] the Second Circuit ruled that jurors can be removed if there is evidence that they intend to nullify the law, under Federal Rules of Criminal Procedure 23(b).

"We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent. Accordingly, we conclude that a juror who intends to nullify the applicable law is no less subject to dismissal than is a juror who disregards the court's instructions due to an event or relationship that renders him biased or otherwise unable to render a fair and impartial verdict."

Jurors can now rightfully be challenged for cause if they do not believe that they are bound to follow the law. If that is not a prohibition of jury nullification, I don't know what is.

Jurors can, should, and generally do follow their own consciences in arriving at their verdict. But I learned a long time ago as a prosecutor that, if you're afraid of the truth, then there's something wrong with your case. The same could be said for jury nullification. If you are having to conceal or deny the truth in order to engage in it, then it is wrong.

I hear what you're saying about "culpability." I think the elements are technically there. That doesn't mean the writers of The Wire should be prosecuted, only that what they are suggesting is not just rebellious or subversive, but is criminal.

And Michael, I "swear" I'm not Anonymous C.

Michael said...

By the way, I should mention (again, for those of you who already know this) that I practice primarily civil law, which means two things. First, jury nullification is a little harder because both sides can move for jnov or jml. Second, jury nullification is a big problem for me too. Tort deformers, I mean reformers, train people to sit on jury panels, keep their mouths shut, and then poison the jury against the plaintiff.

Mark Bennett said...

GB, are you saying that judges can do away with nullification -- which is the refusal to follow the judge's instructions -- by instructing people not to nullify?

Anonymous said...

From Guest Blogger:

Mark, I'm LOL at your comment. You got me there. No, I freely admit that this crap is going to go on regardless of what anyone does as long as you guys put the right (read: crazy) people on juries.

Ron in Houston said...

Guest Blogger

Oh, yes, if they don't goose step to your party line then they must be crazy.

Gritsforbreakfast said...

"You could be next"

Ron, if I'm not already on their list I'd be shocked. When Chuck Rosenthal went down, I told folks, like Hunter Thompson said of Nixon's fall from grace, that I'd been kicking him for years before he was down.

I thought the first amendment arguments posed over on Mark's blog (in the comments) were the strongest and correct position on this, and that the guest blogger has dramatically overreached. Any attempt to prosecute the Wire writers would be a Nifong-esque wrongful prosecution, on its face, IMO.

Anonymous said...

It is so refreshing to get up at 5:30 and find intelligent discussions online, like this one and the one on MB's blog. Beats the hell out of most of what is available.

Just about everything that could be said about jury nullification, and about prosecuting the Wire writers for perjury, has been said here and there. But for two points.

One, the real problem with jury nullification, from my point of view, is that lawyers are not permitted to TELL the jury that they can nullify if they want to do so. If that kind of argument could be made by criminal defense lawyers, we would see a great deal more nullification verdicts.

Secondly, I hope Guest Blogger will respond to this situation: Judges as well as jurors take oaths to follow the law. But verdicts in jury trials, as well as bench trials, do sometimes get reversed on LACK OF EVIDENCE, or NO EVIDENCE, grounds. That is, the jury, or the judge, found someone guilty even though there was no evidence to support the verdict and judgment. Is Guest Blogger suggesting that jurors and judges who find people guilty, even though there is lack of evidence of their guilt, are practicing some sort of nullification for which they can be prosecuted?

Unknown said...

Many laws are deliberately written open ended and undefined- so as to facilitate law enforcement discretion. This is so no "bad actors" go unpunished. Case in point is the "high potential for abuse" in the Controlled Substances Act. All it would take is for jurors to disagree with law enforcement opinion - since such laws are always a matter of interpretation.

They could also impose their own definitions on the law. Sheriffs and police chiefs should not be making laws - but they do in many local laws that are open ended and undefined. They deliberately and flagrantly target certain groups for enforcement. some local jurors are aware of uneven enforcement of statutes by police and could rule accordingly. If police let some people free why shouldn't they let others with similar conduct go free also.

Anonymous said...

When a police officer is sworn in, he can be lying through his teeth, but he will never be prosecuted for that technical perjury.

The same applies when a judge is sworn in.

Police officers lie in court, which we all know. And so do judges. And prosecutors.

When the law starts applying to the courts themselves, let me know.

Anonymous said...

From the Guest Blogger:


While I see your point about convictions reversed for insufficient evidence, we need to make a critical distinction here. While many cases may fall within zone of reasonable disagreement, jury nullification, as advocated and recognized by The Wire writers, entails rendering verdicts contrary to the accepted law and evidence. In other words, cases where everyone agrees that the defendant is factually and legally guilty, but where we are going to "nullify" because we don't agree with the law. That is significantly different than a case where the facts are in dispute and subject to different interpretation by different factfinders.

While everyone has pounced on my suggestion that the Wire writers might be violating the law or (gasp) doing something wrong (as if they wear halos just because they write a great show -- hey, they put themselves out there with that article), what has gotten lost in this discussion, and what has never adequately been addressed by anyone responding to the post here or on the Bennett blog, is that jury nullification conflicts with the juror's oath and involves deception.

But let's agree to disagree about that and move on to the next logical step. Taking the writer's suggestion to its inevitable conclusion, let me propose this question: What if you (you being the juror committed to jury nullification) are asked by the prosecutor during voir dire about your views on the drug war and whether you will follow the law and convict if he proves his case to you beyond a reasonable doubt? If you have heeded the exhortation of the Wire writers, then the truthful answer is "No, I will not convict, regardless of the evidence, unless the case also involves violence."

Prosecutors routinely ask just such questions and when panelists answer them in the manner above, they are challengeable for cause and do not end up serving on the jury. No chance to nullify. Voir dire is conducted under oath, and all the prospective jurors are sworn in.

So what are proponents of nullifcation suggesting at this point? Should you lie to get on the jury? That would be aggravated perjury, too. It's a pretty simple question, and I'm wondering if any of you fine advocates of "civil disobedience" can answer it.

Michael said...

Anonymous C blogger:

While I disliked Ron's rant against you and thought it had migrated from argument to attack, it's time to call you for dishonesty. Your suggestion was not that The Wire was doing something wrong; it was that the Wire is committing a crime. You've subsequently moved the goal post up ten yards after you found your initial position indefensible.

And statements about your future conduct are not lies. I've already made this point; you haven't met it.

Gritsforbreakfast said...

GB, if a juror inclined to nullification were asked "whether you will follow the law and convict if he proves his case to you beyond a reasonable doubt?", if you believe that jury nullification is part of "the law," for reasons others have articulated going back to the Founding Fathers, they wouldn't be lying if they said they "followed the law."

Personally I think it's fine to ask if they'd "follow the law," but improper to ask "would you convict"? A conviction is not required by the law, so a juror who votes not to convict has by no means consciously chosen to flaunt the law.

Jury nullification is a protected form of civil disobedience available to the citizenry to protest laws with which they disagree.

I find it telling that the cites you use to defend your position are admittedly from the last three decades, while cites in favor of it tend to spring from views more closely associated with the Founding Fathers' view of juries, which was a check on the power of the state to prosecute unjust laws.

There's a revisionism to the anti-nullification position. That doesn't mean it's wrong, per se (though I think it is), but it creates a higher barrier when those who originally articulated juries' roles in American criminal law intended something different from your position.

I ask again, where are the constitutional "Originalists" when you need them?! :)

Michael said...

I'm invoking Godwin's law, among others. What's the next subject?

Anonymous said...

To Guest Blogger:

You have here on Grits and on MB's blog made reference to a situation in which "everyone agrees that the defendant is factually and legally guilty" but a juror wants to nullify. Isn't that what is generally considered to be a straw man argument? How can you know that such a situation exists, unless there is a plea of guilty. And in that case, or course, there is no room for a jury verdict, anyway.

Tell us how to distinguish your hypothetical situation from one in which "the facts are in dispute and subject to different interpretation by different factfinders."

If your argument is sound, it should be applicable to judges who find defendants guilty even though there is no evidence to support a judgment of guilty.

I represented a defendant in a TBC involving an indictment for felony theft. It was perfectly obvious to me that the state could not make its case on the facts, but the "victim" was prominent and politically connected, and the trial judge found the defendant guilty. The Third Court of Appeals reversed and rendered a judgment of not guilty, saying that no rational trier of fact could have found the defendant guilty. Another way of saying "everyone knows the defendant is factually and legally innocent." Pretty strong language to lay on a trial judge. Strong enough in my opinion to have supported a prosecution of that judge for violating his oath if, as prosecutors and judges say, criminal intent to commit an act can be inferred from the actual commission of that act.

Your second argument, about voir dire questions and answers, is subtle. You gloss over the possibility that a potential juror knows about jury nullification and considers it to be a significant element of our criminal justice system. That juror could answer the question "yes" and not commit perjury.

Anonymous said...

From Guest Blogger:


Lawyers are allowed to "commit" prospective jurors to following the law. Conviction IS required if the State proves the defendant's guilt beyond a reasonable doubt. If panelists say they can't follow the law or won't convict even if the case has been proven to them BRD, they are challenged for cause and they go home. Therein lies the central conflict between jury oaths and jury nullification.


You are calling my hypo a straw man because it makes the inherent dishonesty of jury nullification obvious. But the other situations you describe are, by definition, NOT jury nullification. Jurors can have reasonable doubts about any aspect of the case and they are entitled to acquit. But jury nullfication is not the same as reasonable doubt. The Wire writers are asking people to acquit "regardless of evidence." Jury nullification by definition means acquitting in spite of the law and evidence requiring a guilty verdict. There's just no way around it.

If you want to make the argument that it is okay to lie in this circumstance because the end justifies the means, then, fine, at least we're having a frank discussion and I can respect your boldness. But trying to change the facts or answer a different question is taking the easy way out and just plain wimpy.

Despite all the peregrinations and dancing around by the posters here, the central question has never been answered: How is jury nullification not -- at the very LEAST -- intellectually dishonest?

Michael said...

One way to get the "central question" answered is to ASK it.

Is jury nullification intellectually dishonest?



Anonymous said...

From Guest Blogger:

Oh yeah, to michael:

Remind me never to do any business with you, since "statements about future conduct are not lies."

Try telling that to the bank the next time you apply for a loan!

Anonymous said...

From Guest Blogger:

to michael

Thank you for the answer!

Gritsforbreakfast said...

GB said, "Conviction IS required if the State proves the defendant's guilt beyond a reasonable doubt."

Except that, the reality is, if the juror votes the other way, no matte what you think you've proved, prosecutors don't get to then prosecute the juror. That's the flaw in your argument.

If what you're saying is true, someone would have prosecuted the OJ jurors.

Anonymous said...

From the Guest Blogger:


This argument is largely academic. Any prosecution -- and I am by no means saying one is imminent, likely, or even POSSIBLE -- would depend on a juror basically admitting that they lied during jury selection or lied when taking their juror's oath (and then presumably nullified.) Nullfication is not and can never be a crime. Jurors can acquit if they have a reasonable doubt about anything, and they really don't owe anyone an explanation of why they have a doubt. I acknowledge, respect, and even defend this though it sometimes costs us cases we think we should win.

I'm talking about a situation that will probably never occur, where a juror says, "I believed the defendant was guilty but I nullified and voted to acquit, and furthermore I knew I was going to do so when I took the juror's oath." It'll never happen, but if it did I believe there would be grounds for an aggravated perjury prosecution.

Like I said, purely academic at this point.

And BTW, while OJ was probably one of the dumbest verdicts in recent memory, I don't think it was nullfication by any means. I believe that jury felt they had reasonable doubts. None of them (to my knowledge) has ever said, "I acquitted OJ as an act of nullification."

Gritsforbreakfast said...

We've come along way, then, GB, because yesterday you were ready to prosecute the Wire writers under the law of parties, and now the issue is merely academic and likely couldn't be proven.

Anyone who engages in jury nullification would do just what most of the OJ jurors did - claim reasonable doubt, vote the way they want, and simply refuse interviews.

You've launched an interesting discussion, GB, but as the conversation has evolved I think there are a lot of holes in the idea that the Wire writers engaged in a prosecutable offense. best,

Anonymous said...

It's all in game, yo.

Anonymous said...

Charles Kiker here:

I'm not at all clear on the details, but a guy was acquitted on charges of possession of marijuana today, in, of all places, Amarillo. He admitted in court that he possessed, but he and his attorney, (Jeff Blackburn), argued that he should be acquitted because he possessed for medicinal use. No exception in Texas law for medicinal use. Seems a clear case of jury nullification and of the jury judging the law as well as the facts. I'm sure it will be in the Amarillo paper tomorrow.

W W Woodward said...

Please pardon the double post - I read Grits' Blackburn Amarillo victory post prior to checking this ?thread?.

Chapter nine of the Texas Penal Code lends itself to some very interesting reading. Some police academy instructors seem to want to concentrate only on the sections that justify the use of force and either don't mention or skim over the sections covering justification for other actions that constitute criminal activity.

Congratulations to Mr. Blackburn.

Question: If chapter nine did not exist, would the medicinal use of marijuana be an appropriate subject for jury nullification?

Anonymous said...

To be consistent, I expect all you pro-nullification people to also proclaim your support of this butthead in encouraging people to lie when taking a similar oath about voting:

"Limbaugh safe from voter-fraud charges"

John Q Citizen said...

I have recently been sent a jury questionaire (as part of my being subject to jury selection later). This serves as a backdrop and primary basis for my interest in jury nullification. Even though this potential jury participation of mine is just now surfacing, I've only known about jury nullification for a couple months. Presently I've been wondering how I would respond to some of the kinds of questions you've raised in your discussion that could possibly be posed by lawyers as to how I would look to exercise my responsibilities as a juror with regards to JN. I firmly believe that a significant part of the law IS JN. Probably my response to jury screening questions would involve expressing my intent to exercise my conscience before God as to how HE would have me judge. After all - the Bible teaches "judge nothing until the Lord comes" . . . and I understand that to refer to when HE comes and speaks to me by His Spirit in the counsels of my heart. This is an important thing, because I do NOT KNOW in advance what counsel He will so bring. None should turn a blind eye or pretend that there is no HIGHER law than that which U.S. courts may limit themselves to considering or invoking. This is even all the more important when we see so-called "laws" that have been legislated or ruled on by public officials who seem to have lost their moorings as to what is truly right and wrong. Is this outlining a case for civil disobedience ? - I think rather a case for looking to the SPIRIT of GOD'S law rather than some mere mortal judge instructing juries comprised of other mortals about the intent and LETTER of MAN-MADE laws. JN is a built in means for the citizenry to correct the corruption of legislative and judicial processes (ones in which its legistors and judges may have had their consciences largely defiled). This is beautifully captured in the quotations of the nation's founders that were given earlier in the thread.