Wednesday, April 21, 2010

The "Should Good People be Prosecutors" panel is actually a thing that is happening

We were all reminded that we live in Berkeley today, when students received an e-mail from the BCCJ regarding an upcoming panel titled "Should Good People be Prosecutors?" I work at a District Attorney's office, but as an irredeemably evil asshole with nary a speck of soul within him, I guess I am unqualified to answer this question. Still, I can't help but hope the panel consists entirely of one justifiably indignant guy saying, "Um, yes, of course. Why the fuck would you even ask that?"

I am certain some commenters will point out the political difficulties associated with prosecution. I am sure Paul Butler, the former federal prosecutor and current law professor hosting the discussion, will present some convincing evidence of how totally screwed up our justice system has become. I will probably even agree with most of his views on the problem. But if his solution is honestly that "good people" should simply abandon prosecution and seek employment elsewhere, that seems as shortsighted as suggesting that they abandon politics because of Watergate. No matter how messed up a system gets, ANY office is better filled with "good people" than "bad people"--if we are even willing to reduce ourselves to such comic book morality. (Make sure you join us for next week's BCCJ panel: "Should Good People work for Dr. Doom?")

In fact, as the justice system begins to address issues like the prison crisis and the increasingly obvious failure of the drug war, the apparently rare "good person" in a prosecutor's office will likely prove an indispensable ally to policy activists like Paul Butler. Even now, while legislative changes remain out of reach despite the best efforts of folks like Mr Butler, it is largely good people exercising the enormous power of prosecutorial discretion that keeps the situation from getting any worse. Because trust me, the penal code is much less friendly than even the worst D.A.'s office.

I guess the real question here is, "Should people whose politics have completely blinded them to reality host discussion panels?" Find out this Friday!

E-mail is below.


Blogger Dan said...

Please join us for a BCCJ Roundtable featuring:

Professor Paul Butler, George Washington University Law School
Paul Henderson, Chief of Administration, San Francisco District Attorney’s Office

Professor Butler will present “Should Good People Be Prosecutors?” a chapter from his new book, “Let’s Get Free, A Hip-Hop Theory of Justice.” Professor Butler served as a federal public defender with the U.S. Department of Justice where his specialty was public corruption. His prosecutions included a U.S. Senator, three FBI agents, and several other law enforcement officials. While at the Department of Justice, Professor Butler also served as a special assistant U.S. attorney, prosecuting drug and gun cases.

Paul Henderson will provide a response to Professor Butler’s presentation. Henderson is the Chief of Administration for the San Francisco District Attorney’s Office. He has over a decade of courtroom and trial experience. He is the highest ranking African American male attorney in the history of the San Francisco District Attorney’s Office. Henderson has successfully handled every type of case in the criminal justice system from nonviolent misdemeanors to serious felonies, including homicide.

Friday, April 23, 2010
Roundtable from 12:30pm to 1:45pm
Lunch served at 12:15pm

Room to be announced

If you have any questions, please contact me.

Thank you, Andrea

4/21/2010 11:46 AM  
Anonymous Anonymous said...

I believe he was actually a federal prosecutor, not a public defender. Kind of an important typo in the context of his talk.

As for the content of his talk, it sounds completely ridiculous. Remember this is the same guy that strongly advocates jury nullification as a means of social protest.

4/21/2010 12:12 PM  
Blogger Dan said...

Yeah, she sent another e-mail correcting that error. I correctly identified him as a former prosecutor in my post.

4/21/2010 12:24 PM  
Anonymous Anonymous said...

i don't know. that sounds like one of those provocative titles to draw people to the panel, and the answer will be, "of course, if you are a prosecutor with integrity." one can hope, anyway.

4/21/2010 1:17 PM  
Blogger Patrick said...

A more interesting topic would be "Should Good People be Defense Attorneys?"

There is a real moral question with respect to whether a "good" person would devote his or her limited energy to helping the guilty escape the legal consequences of their actions. Of course everyone is entitled to representation, and of course it is true that a "good" person might see themselves as working in furtherance of the legal system and not necessarily their clients, but those are difficult and highly personal conclusions to reach. They are by no means foregone, as I think anyone who has thought seriously about the issue will attest.

Further, ALL of the justice system based arguments in favor of being a defense attorney apply with equal force to being a prosecutor -- a good prosecutor might implement the criminal law as honestly as he or she can because of his or her faith in the ultimate success of the American legal system. A prosecutor may negotiate or dismiss cases based on individual facts in a way that a defense attorney cannot. A prosecutor, in other words, is in a far better position to serve justice than a defense attorney.

So, of course good people should be prosecutors. What a stupid question.

4/21/2010 1:25 PM  
Anonymous Chaparral Ben said...

If it's often true that a prosecutor can get a grand jury to indict a ham sandwich, it's crucial to have good people who understand the constraints that they should observe

4/21/2010 2:04 PM  
Blogger Dan said...

@1:17, I hoped the same, but I found a youtube video of a past panel at NYU, and it seems Butler's argument really was that people of integrity will necessarily be compromised by the system and should thus avoid it entirely. Of course, I will give Mr. Burler and BCCJ the benefit of the doubt and hope that it's not presented in such black and white terms. Also, the fact that someone from the SF DA's office will respond is encouraging.

I'm not sure I'll be able to attend, due to my internship at one of those EVIL DA's offices, but if anyone would like to report back here, I would appreciate it.

4/21/2010 2:18 PM  
Blogger Malumphy said...

I agree with Patrick in theory that "good" prosecutors - with their fancy prosecutorial discretion - can do more "good" than a defense attorney. Unfortunately, DAs are the folks who are most often accountable to an electorate - which sucks for them and defendants and justice and the American way. I also think it's valuable for anyone entering any aspect of the criminal justice system to ask him or herself "WTF am I doing here and will it steal my soul." I ask myself this question every day, but most of all when staring into Dan's deep brown eyes.

4/21/2010 2:56 PM  
Blogger Malumphy said...

And also: I like Prof. S*klansky and M*urphy's take on this question. They say that only good people should be in either position, but if you happen to be a bad person, it's better to be a defense attorney. Why come?

Good folks, who we'll define as people who aren't overly zealous and are sticklers for the rules, are unlikely to be as moved to violate someone's due process rights even in the face of pressure from a boss or an electorate. Zealots not so much.

Bad folks, who we'll say are more zealous and less ruley, on the other hand, can be perfectly good defense attorneys because they have fewer rules to follow (don't have to worry about violating the pesky constitution) and are only accountable to their client. They are supposed to be zealots.

Clearly, these aren't the definitions that Prof. Butler would use, but I think it's a useful way to think about the different roles.

4/21/2010 3:05 PM  
Anonymous Anonymous said...

When you consider the incredibly disturbing statistics about American criminal justice (the racial and class statistics in particular), it is at least an interesting question, if not a fair one. If you truly believe that criminal justice in this country is a driver of the misallocation of resources along racial and class lines, then this seems like an obvious enough question to ask. Now the answer, that will be the interesting part...

4/21/2010 3:08 PM  
Blogger Dan said...

@Malumphy, don't you know we have a "no eye color" policy here? Anonymity is crucial! But seriously, thanks for the well reasoned comment. You have earned yourself a ride somewhere--er--a free diet coke--er--a place to stay close to school--er--well, I'll think of something!

4/21/2010 3:44 PM  
Anonymous Anonymous said...

At this point, if Doctor Doom offered me a legal job, I would gladly take it and move to Latveria.

4/21/2010 3:51 PM  
Blogger Dan said...

Just steer clear of Al Pacino

4/21/2010 3:54 PM  
Anonymous Anonymous said...

"she's ovulating..."

4/21/2010 4:00 PM  
Anonymous Anonymous said...

I have observed that prosecutors generally push for harsh sentencing, especially when the defendant is involved in a drug crime. A lot of defense work has less to do with getting guilty people out of jail and more with trying to mitigate the effects of the US's horrible drug sentencing laws and overzealous prosecutors.

4/21/2010 4:24 PM  
Anonymous Anonymous said...

Is that supposed to be the quote from The Devil's Advocate? That was by far the most disturbing scene. Here's your sister. Now impregnate her...

4/21/2010 4:27 PM  
Blogger Dan said...

Object to 4:24 and 3:08 as non-responsive. Explain to me why the situation would not be better if more good people became prosecutors.

4/21/2010 4:52 PM  
Blogger Charlie said...

It's absurd to question whether good people should become prosecutors in terms of society's interests, as I assume this panel discusses. As Malumphy and Patrick have mentioned, with prosecutorial discretion I'd hope that ONLY good people would become prosecutors.

In terms of personal interests, the question at least makes sense. I have serious qualms about my ability to work in a job where a substantial portion of my time is spent convincing others of someone's guilt while nonetheless maintaining neutrality as to what crimes to charge or cases to bring. That said, it's obviously important that some people can do that, and I'd much rather have friends like Dan, or others, interested in this work than less ethical or 'good' people.

4/21/2010 5:35 PM  
Blogger Jackie O said...

Dan, great article that brought me a much needed hearty laugh! I can confirm that you are in fact quite evil.

I would also agree with Patrick that as a person who considers myself "good" (what?), the idea of being a PD is much more problematic than being a DA.

Who is better at effecting positive systematic change, "good" people or "bad?"

4/21/2010 6:02 PM  
Anonymous Anonymous said...

3:08 here,

Dan, my point is not that I know the answer to the question, only that given the state of criminal justice in America and the complexities of institutional racism, the question itself isn't inherently stupid or asinine. The answer, however, may very well be stupid or asinine. Also, just the question of whether or not good people should be prosecutors does not imply that all prosecutors are evil or otherwise not good. Rather it asks if good people, such as yourself, should work as prosecutors. Finally, I think your response suggests two more questions: 1) can good prosecutors effect systemic change, or is the nature of the beast such that good prosecutors will not get promoted or will otherwise be marginalized such that their good intentions would be better spent elsewhere; and 2) Does it violate some non-teleologically derived moral principle to collaborate with an "evil" institution even if your intentions are good. Without having gone to hear Butler speak, I agree with you that good prosecutors are needed far more than good public defenders. I just don't think the question itself is inherently offensive or stupid. But again, the answer supplied very well may be.

4/21/2010 6:27 PM  
Blogger McWho said...

Paragraphs man, paragraphs.

4/21/2010 7:46 PM  
Anonymous Warren said...

This topic reminds me of other recent best sellers with rhetorical question titles, like "Are Men Necessary?" and "Are Women Human?"

4/21/2010 10:24 PM  
Blogger Dan said...

This comment has been removed by the author.

4/22/2010 12:56 AM  
Blogger Dan said...

@3:08/6:27, you make some fine points, and I am glad to see you flesh out your argument. Along with Charlie, you point out the distinction between whether a "good person" should involve himself from his individual perspective vs from a societal perspective. Although the answers to these questions may indeed be different (and thus make the panel's title slightly less stupid), I don't think they need to be. Individuals CAN affect changes in systems--in fact they are the only things that ever seem to--and when that happens, it is rewarding both to society and to that individual. Changes like this become more likely with every "good" person who enters the field of criminal law, on either side, and no one should be discouraged from doing so because Paul Butler regrets his days as a prosecutor.

An individual prosecutor may indeed be forced to prosecute a crime he doesn't think should be prosecuted or push for more time than he thinks is appropriate, but these moral hazards are no greater than those faced by a P.D. who must occasionally live with helping place a dangerous person back on the streets. The practice of criminal law is rife with grey areas and ethical dilemmas on both sides, which is all the more reason to fill these offices with the best people around. To suggest that one side is too corrupt to withstand misses the big picture and risks abandoning the entire justice system.

Every idealistic young law student convinced by rhetoric like Butler's is one less prosecutor who might have pushed for diversion in the right case, where some other asshole will seek LWOP. That makes Mr. Butler as culpable for the system's failings as any "bad" D.A.

4/22/2010 1:06 AM  
Blogger SC said...

I'm totally pleased with the tenor of this discourse in these comments, and I think people are highlighting all the most important points of this debate.

Just to add something else, however, I've actually read Paul Butler's book, and I think the chapter from which this panel topic comes, and the panel itself, are mistitled. In the book, although the chapter is called "Should Good People Be Prosecutors?" the chapter is actually much more focused on exploring whether or not people who identify as social justice progressives and who are interested in doing work that erases racial disparity in this country should be prosecutors. A very different question, to be sure, but one that has a less clear-cut answer, I think.

Did anyone go to the talk last week about criminal justice policy being the new Jim Crow? I didn't, but it's hard to ignore the disproportionate number of poor, black people being affected by all levels of the criminal justice system. Of course, whether or not someone is poor and black and whether or not they are guilty have absolutely nothing to do with each other, and it is (rightly) the job of a (good) prosecutor to prosecute guilty people and hopefully do justice based on whatever other circumstances may be important, which usually don't include their color or their socio-economic status. That's a good thing -- I don't want prosecutors to ever make race an issue in deciding how to resolve a case.

But, that does make the question a bit more complicated. If you become a prosecutor, you will -- by necessity -- be contributing to a system that locks up one in nine black men, which has huge ripple effects across poor black communities in America. By no means does this automatically make you a bad person, and the system will absolutely be better if we have good people in those positions. But it's very hard to be an agent of social change with regard to race and class if you work in a prosecutor's office.

That's the question Paul Butler is more interested in, I think. It's unfortunate that the title of his talk is so inaccurate, largely because it (rightly) pisses people off and distracts from his actual message.

4/22/2010 8:31 AM  
Anonymous Anonymous said...

"she's ovulating..."

4/22/2010 6:27 PM  
Anonymous Aaron said...

I completely agree that those are two different questions.

Having worked in a wide variety of DA offices, I also think it is a legitimate point--as Dan points out--that a young prosecutor might have to ask for more time than he would if he were at complete liberty to use his own discretion. The fact of the matter is that young attorneys across the legal system have to work within hierarchies of decision making. Sometimes superiors make decisions we don't agree with. That is not, however, the end of the matter.

I have never encountered a DA who has not been open to hearing an argument for a reduction in an offer, or a motion to dismiss the charges. Almost universally, the opportunity for persuasion is available, even for low-level law clerks. Now, whether a person in that position has the moral courage to make that argument is another question.

Or has it brought us back to the original question, after all? You see, DAs view themselves as working for the cause of justice. Because of this emphasis on "doing justice" over merely getting convictions, that window of persuasion remains open. That's why we need "good people" in prosecutor's offices: not only to exercise their own discretion, but to push back where necessary against the choices of their superiors, to USE that opportunity for persuasion. No one is claiming that such work would be easy, or even comfortable, but I think we can all agree that such considerations do not mean it should therefore be avoided.

We also need to face up to the reality that DAs are not the ones writing these laws. They do, however, swear an oath to uphold the laws of the land and the Constitution. Real, meaningful activism toward class and race equality needs to be focused as much--if not more--on State legislatures if that is our goal.

4/23/2010 2:57 PM  
Anonymous Anonymous said...

As someone who has read Butler’s book and also attended today’s event, I want to clear up that Butler’s theory is not as simple as these comments have made it appear to be.

First, it is unfair to harshly criticize Butler’s theory as “ridiculous” when people have not read his book or did not come to the event today. I actually think he did a better job articulating his point in person, but in either case, simply dismissing his theory because of the provocative title is unreasonable.

Second, let’s discuss what Butler is and is not saying. He’s not saying that good people can’t do good things working as a prosecutor. What he is saying is that when you do a cost/benefit analysis, it makes more sense for good people to do other things. Let’s not kid ourselves and think that line prosecutors have much, if any, discretion. And even if they do, as discussed today, there are systematic disincentives to asking for a departure from guidelines. So Butler’s point, at least as I see it, is that there will always be prosecutors, and they generally have one goal, to put people in prison. So, good people should consider other types of work where they can have more impact to change our system for the better. These include policy work, being a police officer, or doing impact litigation. For me, Butler is not as much anti-prosecutor as he is pro-other good things.

Lastly, it was refreshing to hear two differing and frank perspectives on the issue of race and the implications of our work. Too often in our society and specifically, in classes at Boalt, are professors unwilling to discuss this. More broadly, this implicates what Malumphy suggested, that we ask ourselves why we do this and why we came to law school. It’s important to often ask these questions.

4/23/2010 4:11 PM  
Anonymous Anonymous said...


Thanks for the clarification; I see now that Butler was merely saying that good people should do good things other than being prosecutors. So much goodness around; it’s almost hard to breathe. Perhaps it is perfectly clear to you, Butler, etc., who these “good people” are that we are talking about; I guess they are distinguished from all the bad people around here who came to law school hoping to change the world for the worse.

Your implication seems to be that “good people” are not the ones who think putting people in prison can have an “impact to change our system for the better.” This probably disqualifies the vast majority of people, those who believe that enacting and enforcing criminal laws, and putting some people in prison, is absolutely essential in making our society better. Of course, how we choose who will be punished and incapacitated by imprisonment is full of major problems – frankly, we do a terrible job of it, and we need to reform the criminal justice system in fundamental ways. But dismissing the value of those who enforce the criminal laws by reasoning that “there will always be prosecutors,” and that their “one goal” is “to put people in prison,” reflects either a dangerous naivety (in thinking that criminal laws and prisons are unnecessary) or a smug moral superiority that is blissfully unconcerned with thinking through the difficult ethical questions confronting prosecutors. People who take these difficult jobs and fight daily uphill battles to achieve fairness and justice in the small areas where they have power have to get their hands dirty by carrying out orders they sometimes disagree with; they lose the luxury of absolute moral purity, but do more to further justice than those who stand on the sidelines and damn the whole system as corrupt.

4/23/2010 5:51 PM  
Anonymous Anonymous said...

I see a pattern:

1) Something vaguely left-of-center happens on campus.
2) Boalt alumni (80% of the posters here) freak out.

The event was actually pretty good... people should have gone. Butler was actually very compelling. Made the D.A. guy look pretty silly, in fact.

4/24/2010 12:53 PM  
Blogger Patrick said...

Without starting a fiery back and forth, I guess would just like to humbly submit that Butler's thesis is not vaguely left of center. It's vaguely left of Berkeley's center, but it's, way, WAY to the left of America's political center. Just my two cents.

4/24/2010 12:58 PM  
Blogger Dan said...

I just want to say that I appreciate both the tenor and substance of the discussion here. Nearly everyone has said something I can respect, even when I disagree. If I can sum up, it seems like the best defenses of Mr. Butler's position have focused on clarifying and distinguishing it from the inflammatory title. While reasonable minds can disagree over the substance of his argument, it seems most would also admit that it's diminished by a really shitty headline.

4/24/2010 10:01 PM  
Blogger Dan said...

I regret that I was unable to attend the panel, but I did do a good deal of reading and Youtube-ing of Mr. Butler. I can appreciate his position on these issues, and I certainly hope his efforts lead to more equality in the justice system. At the same time, I think his responses tend toward the extreme (all the way up to jury nullification). I think we're more likely to have success combating these problems with more balanced solutions, an important one of which would be responsible prosecutors.

4/24/2010 10:03 PM  
Anonymous Anonymous said...

Jury nullification is not that radical! It's a more reasonable response to obviously unjust laws than arguing that no one should ever be a prosecutor, ever, as far as I'm concerned.

4/25/2010 3:08 PM  
Blogger Patrick said...

Wait, what?

4/25/2010 3:09 PM  
Anonymous Anonymous said...

3:08 here, Patrick. Do you have a question? People seem to be using jury nullification as an example of the most radical leftist policy imaginable. I'm arguing that jury nullification is not that crazy, especially when compared to the argument that it's impossible to be an ethical prosecutor.

4/25/2010 4:02 PM  
Blogger Patrick said...

I guess we disagree about terms. I would distinguish between radical, and crazy.

The idea that good people should not be prosecutors (whether by cost benefit analysis or any other rationale) is crazy. It's crazy because it actually does not make sense given our basic understandings of people and of how the world works.

The idea that jury nullification is appropriate, on the other hand, is radical. It is radical because it asserts that it is sometimes legitimate to ignore the law for political reasons. That's not the way our government is designed to work; under our Constitution the remedy for political aversion to a law is political revision of the law. Because it short-circuits the political process in order to achieve a political remedy, jury nullification is best viewed as an ad hoc form of counter-majoritiarianism that literally has no place in a democratic system of government. It's radical because it is lawlessness at the most fundamental of levels. It's not *crazy* because the strategy does make sense given our understandings of how the world works, but it's *radical* because it cannot be reconciled with the idea of a constitutional form of government. (That is also the reason I believe it is illegitimate under any circumstances, but I realize not everyone is as committed to process as I am.)

Anyway, that's how I see it.

4/25/2010 4:28 PM  
Blogger Dan said...


4/25/2010 9:03 PM  
Anonymous Anonymous said...


The racism of the the police cannot be reconciled with the Constitution. So why aren't you calling that radical?

4/25/2010 11:55 PM  
Blogger Patrick said...

The reason, 11:55, is that all squares are rectangles but not all rectangles are squares. Jury nullification may be radical because it cannot be squared with the constitution, but that doesn't mean that all things that cannot be squared with the constitution are radical.

Those police whose actions are motivated by racist violence are not "radicals" because they are not attempting to work political change. They're just criminals. Their behavior (unlike a nullifying jury) is a reprehensible individual calculation, and not a gesture intended to have political effects.

That's why.

4/26/2010 12:14 AM  
Anonymous Anonymous said...

Patrick, you should go ahead and read the jury nullification chapter of the book. You might not agree with him, but Butler explains why this "squares with the constitution."

Also, under your theory, it would be "radical" for juries in the south in the 1950s to acquit people when they didn't go to the back of the bus. I guess Rosa Parks, her sympathizers, and anyone on a jury who might not have convicted her are just "radicals".

4/26/2010 11:48 AM  
Blogger Patrick said...

Yes, nullification of juries in the 1960's was radical.

But I absolutely hate when people try to cram words into my mouth - I never said, and never would say it was "just" radical.

4/26/2010 11:52 AM  
Blogger SC said...

Patrick, I understand that you personally don't agree with jury nullification as a valid form of political action, but saying, "That's not the way our government is designed to work; under our Constitution the remedy for political aversion to a law is political revision of the law" is just incorrect.

Trial courts can never direct a verdict of guilty, no matter how overwhelming the evidence. Once a jury acquits, the state can never again prosecute that defendant for that crime, no matter how unreasonable the not-guilty verdict was. Criminal juries cannot be required to fill out a special verdict form -- the jury is given "a special veto power, and that power should not be attenuated by requiring the jury to ... explain its reasons." (United States v. Wilson, 629 F.2d 439.) When instructing jurors, judges are required to say that if they find all elements of the crime proven beyond a reasonable doubt, they "may" convict, not they "must" convict.

" 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 direction of the court." - John Adams, 1771

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

"The jury has the power to bring a verdict in the teeth of both the law and the facts." -Oliver Wendell Holmes, 1920

You can disagree with it all you want, but saying it's not the way our system is designed to run is just plain wrong. And if jury nullification is radical, then so are Adams, Hamilton and Holmes.

4/26/2010 1:43 PM  
Blogger Patrick said...

Yes, but no. Each of the quotes to which you refer are expressions of the framers' view of the function the jury is supposed to serve: fact finding by lay persons, as opposed to fact finding by prosecutorial bodies.

That is the point of the jury system -- it is to ensure that the body that determines the facts of a matter is not the same body that brings the legal charges in a matter. That is quite distinct from the power to determine the meaning of the law in the matter. The point of the jury system is not, and was never, intended to give a body of twelve laypersons the power to determine what the law IS. That power belongs to the majority, as delegated to the legislature, and as constrained by applicable state and federal constitutions.

The thinkers you quote are saying the jury should acquit if it doesn't find facts sufficient to support the charge, no matter what the court says about the sufficiency of the evidence. That's not jury nullification. Jury nullification describes acquittals despite the jury's belief beyond a reasonable doubt that the defendant committed the elements of a crime. That does not describe what those thinkers are saying.

4/26/2010 1:52 PM  
Blogger SC said...

Don't know if these will convince you any more than the previous ones did, but I'll give it one last try:

"The jury has a right to judge both the law as well as the fact in controversy." -John Jay, 1794
"The jury has the right to determine both the law and the facts." - Samuel Chase, 1804
"The jury has... unreviewable and irreversible power... to acquit in disregard of the instructions on the law given by the trial judge." - DC Court of Appeals, U.S. v. Dougherty, 1972
"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." -Fourth Circuit Court of Appeals, United States v. Moylan, 1969
"It is presumed, that the juries are the best judges of facts; it is, on the other hand, presumed that the courts are the best judges of law. But still, both objects are within your power of decision. You have a right to take upon yourselves to judge of both, and to determine the law as well as the fact, in controversy." -U.S. Supreme Court, Georgia v. Brailsford)

Okay, I'll stop now. It seems very clear to me that jury nullification is an absolutely legitimate and historically protected form of political action and protest. If you disagree with the idea of jury nullification, that's absolutely valid. But you're also disagreeing with the Constitution.

4/26/2010 2:09 PM  
Blogger Patrick said...

We're at loggerheads.

You are certainly entitled to believe that the constitution and the courts support the idea that juries should decide questions of law. I think you're mistaken, and I think I could come up with a list of quotes to support my view. I even think it would be longer than yours, and without cases from the 1790's for points of law that have long since been overruled.

Instead, though, let's just disagree.

4/26/2010 2:16 PM  
Anonymous Anonymous said...

patrick: i'm pretty sure you and sc were already at 'loggerheads' even before sc provided caselaw to support his/her understanding of jury nullification. are you sure your list is longer and relies on case law far removed from when the bill of rights was ratified? if so, i understand why it's best to just disagree.

4/26/2010 3:11 PM  
Blogger Dan said...

The difference, as I see it, is between acknowledging jury nullification as a constitutionally legitimate exercise in an individual case where the 12 people are simply not willing to convict the defendant, despite him being technically guilty of the crime (see e.g. the crappy film and crappier book, A Time to Kill), and claiming it is constitutionally legitimate as a broad-form political strategy to undo racial injustices in prosecutions across the board. The former form of nullification allows a rare good person to go free where the statutes would treat him unfairly, while the latter would regularly put heinous criminals back on the street for political reasons. You tell me if you think the founders intended for both.

4/26/2010 3:29 PM  
Anonymous Anonymous said...

i'd have to agree with your over-simplified and inaccurate dichotomy in order to answer that.

4/26/2010 3:38 PM  
Anonymous Anonymous said...

how often are juries eager to put heinous criminals back on the streets for political purposes?

aside from juries nullifying racially unjust laws in the 60s as a tool to move civil rights forward, the most common form of jury nullification in the modern day (i think) is with regard to drug laws.

so, unless you see someone who possesses marijuana as a "heinous criminal" i don't think there's much to worry about with jury nullification in terms of public safety.

4/26/2010 3:42 PM  
Blogger Dan said...

This comment has been removed by the author.

4/26/2010 3:57 PM  
Blogger Dan said...

Pehaps "heinous" went a bit too far. Regardless, I maintain there is a distinction between "nullifying" in individual cases based on particular circumstances (defense attorneys effectively push for nullification all the time by focusing on mitigating circumstances instead of whether the law was technically violated) and nullifying across-the-board in response to any law. The first is was certainly intended as part of the jury system; the second is a post-hoc political solution.

4/26/2010 3:58 PM  
Blogger Carbolic said...

What the hell is wrong with your caps lock?

Or are you five years' old?

4/26/2010 9:00 PM  
Blogger Dan said...

Whatchoo talkin bout, Carbolic? I see no caps.

4/26/2010 11:46 PM  
Anonymous Anonymous said...

sounds like the panel did its job in terms of provoking thoughtful responses.

did you see that two chicago politicians called for the National Guard to be deployed in chicago to protect (mostly black) citizens from crime? if that's an acceptable stance in the black community, can't it be ok to be a mere prosecutor?

4/27/2010 10:32 AM  
Blogger Carbolic said...

Sorry, I was referring to 3:42 and its ilk. Your capitalization is exemplary.

4/27/2010 12:18 PM  
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10/12/2011 10:02 AM  

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