Thursday, August 28, 2008

Jury nullification, part six

And the chess game continues.

Some contend that objections to jury nullification are predicated on a "slippery slope" argument, thus making them invalid. I had to think about my hypothetical resposne to that, but KoS offered an excellent rebuttal.

[N]ine times out of ten, slippery slope is a really stupid argument, and you're right to be leery of it. But the actuality, not the possibility, of jury nullification is what makes headlines, and it's rare and even then the meaning (compared to what I'll call genuine civil disobedience) is often a mystery: did the jury violate its oath because the law is unjust, or because the defendent was very like them, or because too much information was withheld, or because they were stupid, or because they were tricked, or because they wish to protest some other law, or all laws, or, just maybe, did the facts and law actually support the verdict? Let's think about this last possibility: the whole point of jury nullification is thwarted if most people assume the panel is stupid or corrupt. That alone should make you pause, shouldn't it? If they assume that it is, what's the breakdown on how many will assume that a dozen stupid and corrupt people are screwing up a trial for a noble and worthwhile purpose? You may as well try to convince them that you would have given the purse you were caught stealing to the United Way if you hadn't been caught. That in a nutshell is why civil disobedience belongs to the public at large, willing to break the law and go to prison, because only personal sacrifice stirs the conscience. Renegade jurors with uncertain motives aren't rebels, they're just (word not appropriate for Great Debates)s. And their example leads people to distrust jurors, not legislators.

So I still say that jury nullification not only blunts the impact of genuine civil disobedience, it undermines institutions that make any dissent possible.