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Silk Road Seized - Dread Pirate Roberts Arrested
40hz:
@Ren - You're still overlooking the 800lb gorilla in the picture.
re: jury nullification
Again, almost always in movies.
Attorneys are expected to argue for the law as it applies to the case, and the facts as presented. It's generally been seen as a violation of an attorney's oath (as an officer of the court) for one to ask a jury to ignore the law as it exists when considering their verdict.
And there's also a great deal of legal precedent that says that even though juries may choose to nullify, the courts are under no obligation to tell them they can - or - to allow an attorney on either side to so inform them. And that opinion goes back a number of years, and was the determination made in several different rulings on the subject of jury nullification.
So while it may seem like a cool idea for juries to take the initiative and override a law they disagree with when reaching a verdict (and they legally can do just that under US law) it's a dangerous road to go down. Because if it becomes commonplace, the entire legal system goes out the door and you have a small-scale version of mob rule in effect. Which means it's not the law, or the facts in a case, but rather the jury selection that becomes the deciding factor in obtaining a judgement. Which is ripe for abuse by both the prosecution and the defence.
Renegade:
@Ren - You're still overlooking the 800lb gorilla in the picture.
-40hz (February 04, 2015, 10:05 PM)
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If you mean the thugs that call themselves "government" or "government employees", well, no argument that they are the 800lb gorilla. ;)
re: jury nullification
Again, almost always in movies.
-40hz (February 04, 2015, 10:05 PM)
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No.
http://en.wikipedia.org/wiki/Jury_nullification
http://en.wikipedia.org/wiki/R_v_Morgentaler
R v Morgentaler [1] was a decision of the Supreme Court of Canada which held that the abortion provision in the Criminal Code of Canada was unconstitutional, as it violated a woman's right under section 7 of the Canadian Charter of Rights and Freedoms to security of person. Since this ruling, there have been no criminal laws regulating abortion in Canada.
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Jury nullification there. And one of the most important cases in Canadian law.
A paper on it here:
http://www.academia.edu/2631245/Jury_Nullification_in_a_Canadian_Context
p. 62~64 (screwed formatting)
The unanimous decision in Krieger was written by Justice Fish and it further demonstrates the Supreme Court of Canada‘s willingness to link law and morality, embracing edicts of natural law. The Supreme Courtaffirmed the not guilty verdict which the trial jury would have rendered because they believed more so in the process than the plain meaning interpretation of the statute. Fish states
It has since then (in 1670, when jurors were fined and imprisoned for a ―not guilty verdict) been well established that under the system of justice we have inherited fromEngland juries are not entitled as a matter of right to refuse to apply the law — but they do have the power to do so when their consciences permit of no other course.
This paragraph is suggestive that the judges of the Supreme Court believe in juries using their own morality. Justice Fish is quick to point out that the process of refusing to apply the law, or nullification is not ― a matter of right but that the power to do so exists, only when it is deemedby that jury to be absolutely necessary. When a jury‘s collective conscience tells them that thereis ―no other course‖ of action this is when nullification is absolutely necessary, as the jury felt in
was the situation in this case. Furthermore, the Court continues into the next paragraph by stating
63
case law from 1784 that they have used throughout Canadian jurisprudence as the base for jurynullification:
It is the duty of the Judge, in all cases of general justice, to tell the jury how to do right,though they have it in their power to do wrong, which is a matter entirely between Godand their own consciences.
Justice Fish indicates that while the Court has decided in this case and going forward that trial judges should not instruct jurors on how to find, that judges should still instruct jurors on what is the most appropriate legal course of action, or how to ―do right. Whether or not a jury chooses to abide by that course of action is, as the Supreme Court decided in this case, up to them.
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Fish is here:
http://scc.lexum.umontreal.ca/en/2006/2006scc47/2006scc47.html
Cached here (I couldn't load it):
http://webcache.googleusercontent.com/search?q=cache:5DvsGVs3meYJ:https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2321/index.do+&cd=1&hl=en&ct=clnk&gl=au&client=opera
Just one important snippet from there:
The trial judge deprived the accused of his constitutional right to a trial by jury when he directed the jury to find the accused guilty as charged. The trial judge’s direction was not a “slip of the tongue” to be evaluated in the context of the charge as a whole; nor is this a matter of assessing the impact of subtle language susceptible to different interpretations. His purpose and words were clear. In effect, the trial judge reduced the jury’s role to a ceremonial one: He ordered the conviction and left to the jury, as a matter of form but not of substance, its delivery in open court.
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A kind of important point there.
Attorneys are expected to argue for the law as it applies to the case, and the facts as presented. It's generally been seen as a violation of an attorney's oath (as an officer of the court) for one to ask a jury to ignore the law as it exists when considering their verdict.
-40hz (February 04, 2015, 10:05 PM)
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Juries are perfectly free to ignore the law. That's the point. Talking about the "officer of the court" being paid to railroad people and ensure that the jury is ignorant of their rights, and flat out deceived about them... that's another matter.
And there's also a great deal of legal precedent that says that even though juries may choose to nullify, the courts are under no obligation to tell them they can - or - to allow an attorney on either side to so inform them. And that opinion goes back a number of years, and was the determination made in several different rulings on the subject of jury nullification.
-40hz (February 04, 2015, 10:05 PM)
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Not to be snotty or anything, but I'm not sure whether you're trying to be deliberately beligerent or whether you just don't know that the judge in this case explicitly banned the defense from mentioning it (see below re: 1st amendment). (Are you just screwing with me for kicks? I can't say as I'd blame you -- it can be fun trolling sometimes, and I'm a good target. :) :P )
For a judge to forbid someone to defend themself is beyond unconscionable.
I really don't understand how you don't see this.
Just to be clear... the judge **threatened** the defense and explicitly forbade the defense from using jury nullification in their defense.
So while it may seem like a cool idea for juries to take the initiative and override a law they disagree with when reaching a verdict (and they legally can do just that under US law) it's a dangerous road to go down. Because if it becomes commonplace, the entire legal system goes out the door and you have a small-scale version of mob rule in effect. Which means it's not the law, or the facts in a case, but rather the jury selection that becomes the deciding factor in obtaining a judgement. Which is ripe for abuse by both the prosecution and the defence.
-40hz (February 04, 2015, 10:05 PM)
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Any country with common law. Canada, Australia, etc.
And, uh, no. Not a bad road at all. ;)
Remember... the next box is the cartridge box... Best to avoid that. ;)
Jury nullification is not "setting murderers free". Jury nullification is a judgement against a law.
e.g. Tomorrow possessing ginger ale is made illegal, and the police show up to arrest me (I just bottled another batch earlier today). It goes to trial. The jury votes "not guilty" knowing damn well that I had ginger ale.
That's not a statement about me -- it's a statement that the law is wrong.
i.e. "He had ginger ale. So what? Stupid law. Not guilty of anything that should be punishable."
It is very different from cases like that fellow in Florida in the late 80s who killed his wife, but got off with the defense "justifiable homicide". Very big difference. The laws against murder weren't nullified there.
This (proscribing jury nullification as a defense) is a BLATANT violation of the first amendment to the US Constitution in limiting what someone can say.
There's no wiggle room here. None. Zero. Nadda. Zilch. Zippo. Done. That's all she wrote.
The US Constitution, as other national constitutions, is meant to limit or set forth the power of the government, and banning speech is not one of the powers granted to the US government. In fact, it is explicitly forbidden.
Laws that violate the constitution are not valid laws. We have a special word for them: "unconstitutional". :)
But, but, but, but...
No. Read the first amendment. ;)
But, but, but, but...
The first amendment. ;)
Jury nullification is NOT open for abuse like you make it out to be.
But, if you can explain just how a finding of "not guilty" can benefit the prosecution, well, I'll be damn impressed! ;D
As for the issue of jury selection... c'mon... Really?
The prosecution gets an UNLIMITED number of dismissals. The defense has a limited number. Jury selection is (INFINITELY) HEAVILY weighted in favour of the prosecution already, so trying to confuse the issue of jury nullification with jury selection just doesn't hold water. The prosecution already has an INFINITE advantage there. What more do they need? Infinity + 1? An infinite set of infinities? C'mon... We both know that Cantor's Theorem doesn't apply here. ;)
This case was a joke from the start.
40hz:
^Ren - you have a very single-minded all encompassing political lens (partially correcting some wilful blindness) that you tend to see the entire world through. I commend you for it. ;) :)
re: peremptory challenge (i.e. disqualifying jurors)
For the record, that's not how it works in the states. Prosecutors aren't allowed unlimited challenges. The details vary by jurisdiction as most procedural legal things do in the USA. And the number of juror candidate disqualifications allowed usually depends on the seriousness of the charge(s) tried. The more serious the charge, the more that are allowed. But in all cases the defense is allowed more of these than the prosecution. The most common number is 10 allowed for the defense and 6 for the prosecution.
That covers "peremptory" juror disqualifications - which is a fancy way of saying "I just don't want this person sitting on the jury." NO reason needs to be (or is) given for having a candidate disqualified with a peremptory challenge.
Any person being considered for a jury can, however, be disqualified for cause. And by either side. But those challenges are granted solely at the discretion of the trial judge hearing the case as normal part of the voir dire process. So while an unlimited number of potential jurors may be theoretically be disqualified, in practice the judge usually only allows so many. And there are fairly strict rules for what is considered an acceptable cause for disqualification - with the burden of establishing such cause resting solely on the shoulders of the attorney asking for it. The exception is in cases where a cause is so glaringly obvious (e.g where someone who is legally blind is being considered for a jury that will be asked to look at a great deal of photographic, video, and/or physical evidence during the trial) that a judge may disqualify the juror directly from the bench.
The usual way it works is 28 jurors (who could not be disqualified for cause) get selected. Then, the defense team gets to eliminate it's ten - and the prosecution gets to remove it's six. That leaves a classic 12-man jury - and trial proceeds. In cases where it is anticipated that the trial will run for a longer than average time, it's also not unusual to appoint one or two additional jurors as alternates - just in case somebody on the jury flips out or becomes medically incapacitated. Which happens from time to time, and could result in a mistrial if no alternate is available to take their place.
So that's why there are peremptory challenges. That's the trial attorney's ace in the hole for preventing the other side from too easily stacking the jury.
If you want a better understanding of how the entire process actually works, see: Jury Selection Procedures in United States District Courts. It's less than 70 pages. It's a very interesting read IMO. And a surprisingly easy one too.
re: what sort of evidence and testimony gets admitted during a trial:
In federal cases, what is admissible evidence is governed by either specific statute or The Federal Rules of Evidence which first went into effect in 1975. Those rules (which also cover the qualification and `admission of expert testimony and witnesses) were established to provide more uniform treatment in federal court cases.
So it's not really all that easy for Judge Kangaroo to do whatever he likes in a federal trial. (There's also the appeal process. That's something even the most arbitrary judges need to be concerned about if they played fast and loose with established procedure.)
re: the 800lb gorilla
First up - cute comeback. I laughed. :Thmbsup:
Next: I don't see anybody who argued that illegal drug trafficking wasn't being conducted through Silk Road. It was pretty obvious it was.
But Ulricht's legal argument was (a) that he was not involved in any way shape or form; and (b) that even if he somehow was involved, some odd sort of "safe harbor" rule applied because he was merely the site's owner. ("Look...I didn't do it. But if I did do it...it was an accident!") Unfortunately, "safe harbor" doesn't fly too well when a serious criminal act has been committed. But "aiding and abetting" provisions in the law certainly do. You can become an "accessory" to a crime either by your acts or your omissions. And you can be convicted of being an accessory to a criminal act even if the named principle is acquitted. Because it usually isn't a question of whether or not a crime was committed. In most cases, it's fairly obvious one was. Once it goes to trial it's a mostly a matter of who will be held accountable. And in what capacity.
Renegade:
Let's drop the jury selection bit. We're going across jurisdictions, and my memory of law classes may be a bit fuzzy. So, it's not a point that I think I can keep up with. Call it a win for 40hz. ;) (And I'll check into the docs you posted once I have time.)
But you didn't address the 1st amendment violation. This seems to be a teensy, tiny bit important.
I don't see how there's any way around that.
The judge put a gun to the defense's head and threatened them if they tried a sane defense (speech).
Trying to claim "federal rules of evidence" doesn't address the issue. If anything, it only illustrates the debasement of the first amendment and the criminality of the courts, judges, lawyers, and politicians that are complicit in that crime.
40hz:
Call it a win for 40hz.
-Renegade (February 05, 2015, 08:54 AM)
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It's not a competition. But thanks. At least I wrote something that wasn't too vague or rambling for once. ;D
But you didn't address the 1st amendment violation. This seems to be a teensy, tiny bit important.
I don't see how there's any way around that.
The judge put a gun to the defense's head and threatened them if they tried a sane defense (speech).
Trying to claim "federal rules of evidence" doesn't address the issue. If anything, it only illustrates the debasement of the first amendment and the criminality of the courts, judges, lawyers, and politicians that are complicit in that crime.
-Renegade (February 05, 2015, 08:54 AM)
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Um...ok...
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
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Am I missing something?
Maybe you meant Amendments V through VIII?
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Amendment VII
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
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I don't see anything in any of the above that was clearly (or even obscurely) violated. :(
Perhaps you're saying that the due process itself is unjust? Well, therein lies the critical difference between what the law actually says - as opposed to what most of us (i.e. non-attorneys) usually think it says or wish it said. As one inexperienced attorney was famously reminded by Supreme Court Justice Oliver Wendell Holmes Jr. when his arguments "for justice" ventured a little too far from the actual words of the law: "This is a court of law, young man, not a court of justice."
Something to remember: The United States is a nation built on law. Whatever justice gets accomplished as a result of law is largely incidental.
As one wise individual by the name of Edison Haines so accurately put it: "Law is not justice and a trial is not a scientific inquiry into truth. A trial is the resolution of a dispute."
If it's any consolation, this comes as a complete shock to most Americans too. Especially the ones who first learn about it while facing a judge. It's right up there with the awkward feeling you occasionally experience in the presence of your parents once you're old enough to know (in no uncertain terms!) exactly what your father had to do to your mother in order to bring you into existence.
;)
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Note: I think it was defence attorney (and former federal prosecutor) Ken White of Popehat that had some excellent things to say on this very subject. If I can find it I'll post the link. :)
Update: Found it! Link here.
In this case it was about a particularly heinous individual getting off (in my state no less!) after committing a frankly hideous crime - not because of a "technicality" - but rather because the trial court correctly followed due process as the law does and should require it to do.
Ken goes on to explain why it is so important that a court behave in such a manner - and why the occasional grave injustice that does occur in the wake of the properly executing "due process of law" is so important in order to prevent even graver injustices from becoming the norm.
And while this one was a 'victory' for the defense side - what happened holds in the same manner for the prosecution under US law. Dame Justice's sword is a two-sided weapon.
Here's an excerpt:
Frankly, I Don't Care How Due Process Makes You Feel
by Ken White · October 9, 2012
I stopped blogging about Nakoula Basseley Nakoula, the maker of the "Innocence of Muslims" video. I stopped because (1) I am interested in discussions about what the law is, to the extent that discussion is based on law, (2) I am interested in discussions of what the law should be, (3) I am interested in discussions of how courts work, to the extent those discussions are premised on actual experience and facts, but (4) I am completely uninterested in what people feel the law is, and (5) I am completely uninterested in what people feel happens in courts, frequently based on TV.
Discussions of what the law is based on feelings annoy me. They're about mob rule, not the rule of law...<more>
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