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Jury Nullification Advocate Is Indicted
New York Times ^ | February 25, 2011 | BENJAMIN WEISER

Posted on 02/25/2011 10:52:20 AM PST by Second Amendment First

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To: cripplecreek

>>U.S. vs. DOUGHERTY (1972) [D.C. Circuit Court of Appeals]: The jury has....”unreviewable and irreversible power...to acquit in disregard of the instructions on the law given by the trial judge.”<<

That is the money quote. When courts hand down decisions, the decision is written with an explanation, such as the 78 pager written by the judge in Florida on the unconstitutionality of obamacare. But a juror is merely asked, if asked at all, is this your vote”. Both times I was on jury duty, after the vertict was announced, each of us were asked for our personal vote.

A juror does not have to justify his decision. The implications are enormous. I was actually thumbing my nose at one judge (In my head, of course) during one small part of his instructions.


51 posted on 02/25/2011 11:30:00 AM PST by RobRoy (The US Today: Revelation 18:4)
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To: Navy Patriot

No jury. “Because he was charged with a misdemeanor, she said, he was not entitled to a jury trial”


52 posted on 02/25/2011 11:31:43 AM PST by Ratman83
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To: Second Amendment First
Wood, Kimba Maureen
Born 1944 in Port Townsend, WA

Federal Judicial Service:
Judge, U. S. District Court, Southern District of New York
Nominated by Ronald Reagan on December 18, 1987, to a seat vacated by Constance Baker Motley; Confirmed by the Senate on April 19, 1988, and received commission on April 20, 1988. Served as chief judge, 2006-2009. Assumed senior status on June 1, 2009.

Education:
Connecticut College, B.A., 1965
London School of Economics, M.Sc., 1966
Harvard Law School, J.D., 1969

Professional Career:
Private practice, Washington, DC, 1969-1970
Attorney, Office of Legal Services, Office of Economic Opportunity, Washington, DC, 1970-1971
Private practice, New York City, 1971-1988

53 posted on 02/25/2011 11:32:04 AM PST by SmithL
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To: WayneS

>>In my opinion, jury tampering is only a valid charge if he handed out the pamphlets only to specific juror(s) for purposes of influencing the verdict in specific case(s).<<

Exactly how I see it. If they cannot prove he was targeting specific jurors, I honestly do not know how they think they have a case. I think this is intimidation and if he calls them on the bluff, eventually they will have no choice but to blink. And if I were him, I’d ask for a jury trial. :)


54 posted on 02/25/2011 11:32:15 AM PST by RobRoy (The US Today: Revelation 18:4)
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To: Christian Engineer Mass
"Judges “instructing” juries should be illegal. Advise, yes, but instruct, no. "

A judge "directing" a verdict is a total distortion of the court system. Even chief justices have promoted jury nullification as the greatest balance to the judicial branch. Problem now is we have extreme corruption in the court room.

55 posted on 02/25/2011 11:33:01 AM PST by TPOOH (I wish I could have been Jerry Reed.)
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To: cripplecreek

He only need present those four quotes in his defense case. ;)


56 posted on 02/25/2011 11:33:39 AM PST by RobRoy (The US Today: Revelation 18:4)
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To: Second Amendment First

During prohibition, especially in Florida, jurors just plain refused to convict rum runners. This irritated prosecutors so much that they first subverted the right against double jeopardy, but that didn’t work, because they couldn’t get a jury to convict no matter how hard they tried.

So judges hit on the idea of using an injunction against them that was so restrictive they couldn’t conduct business. This worked, because if they violated terms of their injunction, they would immediately be taken before that same judge, who would convict them on the spot for “contempt of court”, which didn’t merit a jury trial. So that was up to one year in jail.

Almost immediately this was corrupted so that there was no way they could *not* violate the injunction, including the use of clearly unconstitutional restrictions.

And even when prohibition ended, these techniques did not. Some are still in use. So while jury nullification might work for a while, a court system that does not care what the public thinks will seek to overcome it.


57 posted on 02/25/2011 11:34:10 AM PST by yefragetuwrabrumuy
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To: antiRepublicrat

I think the tyranny is running scared.


58 posted on 02/25/2011 11:36:48 AM PST by Goreknowshowtocheat
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To: RobRoy

According to the article: “distributing of such pamphlets at the courthouse entrance violates the law against jury tampering”

The Professor is a crusader, and he has been harassed for informing the jury pool of our common law inheritance — Jury Nullification — before.

There is also a strong current of the War On Drugs here, so we get some “conservative” judges adamantly hammering down on any whiff of “jury nullification” ideas and the persons who would dare say they apply.

See for additional info on the Professor’s crusade: http://www.peoplevstate.com/?p=795


59 posted on 02/25/2011 11:42:16 AM PST by bvw
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To: SmithL; US Navy Vet; Emperor Palpatine

Kimba Wood was Clinton’s second attempt at appointing an Attorney general. Like his first nominee, she was dumped for illegal “nanny” problems. Janet Reno ended up with the job.

Lani Guiniere was nominated by Clinton for Assistant Attorney General in charge of the Civil Rights Division, but got dumped for being a radical and basically a complete goofball.


60 posted on 02/25/2011 11:47:05 AM PST by Lancey Howard
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To: Emperor Palpatine
Actually, jury nullification goes back to the beginnings of this nation

That a juror cannot be punished for a not-guilty verdict in opposition of the court's instructions was established in 1600s England in the case of William Penn. The first famous use here was in the early 1700s in the Peter Zenger case, where he was acquitted of libel against the crown for printing truths. The jury was told truth is no defense for libel, yet they acquitted him anyway. This case also helped establish that truth is an absolute defense to a claim of libel. That's still not the case everywhere in the world today.

61 posted on 02/25/2011 11:48:27 AM PST by antiRepublicrat
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To: Emperor Palpatine
However Wood is of kindred spirit

Lani Guinier was flagged out because of her radical publications, iirc. Wood was one of two Slick appointees (Zoe Baird the other) that bowed out because of SS irregularities concerning their household staff (which little people don't understand because we don't have servants, you know.)

62 posted on 02/25/2011 11:49:38 AM PST by thulldud (Is it "alter or abolish" time yet?)
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To: SmithL; US Navy Vet; Emperor Palpatine

Incidentally, Clinton’s first nominee was Zoe Baird.
Obviously, men need not have applied during the Clinton regime.


63 posted on 02/25/2011 11:49:47 AM PST by Lancey Howard
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To: Ratman83
“Because he was charged with a misdemeanor, she said, he was not entitled to a jury trial”

Unfortunately, the Constitution does not agree and Federal court will reverse this in an instant.

The only legal non jury offense is an "infraction" and can only carry a monetary penalty, with no custodial option (jail time). There are no indictments for infraction level offenses.

Additionally, a Federal civil rights tort will likely result. This won't go the way the prosecutor wants.

64 posted on 02/25/2011 11:50:14 AM PST by Navy Patriot (Sarah and the Conservatives will rock your world.)
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To: bvw

>>According to the article: “distributing of such pamphlets at the courthouse entrance violates the law against jury tampering”<<

I would say that is someone’s interpretation of the law. :)

I suppose it’s all they got though, unless they had the presence of mind to slip some coke in one of his pockets.


65 posted on 02/25/2011 11:51:20 AM PST by RobRoy (The US Today: Revelation 18:4)
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To: Ratman83
No jury. “Because he was charged with a misdemeanor, she said, he was not entitled to a jury trial”

Thus neatly avoiding the problem of having to inform a jury of the existence of their nullification power. Since that's the subject of the trial in the first place it would be impossible for a judge to preven the jury from being told about it.

66 posted on 02/25/2011 11:52:12 AM PST by antiRepublicrat
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To: bvw
I just did a quick google of the definition of Jury tampering. If this is close to accurate, they have no case against this guy:

Jury Tampering

It is a crime to influence a jury to make decision in your favour by illegal means other then a fair trial process involving presentation of evidence and court proceedings.It includes discuusing the case out of the court,offering bribes,warning of dire consequences or asking a friend or family to make negotiations with a jury member.

Unless they can prove this guy was talking to specific jurors on specific cases with specific case related info, I cannot see how they possibly have a case against him. And I think they know it.

67 posted on 02/25/2011 11:54:55 AM PST by RobRoy (The US Today: Revelation 18:4)
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To: WayneS
A law blogger's take on a the subject: Jury Tampering and the First Amendment , Mike Appleton (guest blogger), Jonathan Turley's blog, 20 Feb 2011.
A Florida circuit judge has issued an administrative order virtually certain to result in a court battle pitting the right of free speech against the duty of courts to protect the integrity of jury deliberations. The order prohibits “the dissemination of all leaflets and other materials to summoned jurors, ....

Several months prior to entry of the order, another judge in the same circuit felt compelled to disqualify a jury panel whose members were found to be in possession of FJIA educational pamphlets, concluding that the distribution of the materials to prospective jurors was a form of jury tampering under Florida law. Florida statutes make it a third degree felony to influence a juror with the intent to obstruct justice.

The FJIA contends that their information is generic and is intended solely to educate jurors on the historical right to acquit a criminal defendant, even in the face of evidence of guilt beyond a reasonable doubt, if they conclude that the law is unjust or is being unjustly applied. ...

The order will undoubtedly be attacked as an unconstitutional restriction on free speech, at least in the absence of evidence that the dissemination of the information created a clear and present danger to the administration of justice. It is highly doubtful that the order as drafted can withstand a constitutional challenge.

Hope so.
68 posted on 02/25/2011 11:56:26 AM PST by bvw
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To: texson66

on the contrary...jury nullification is discussed at great length in the federalist papers. It is another way the population at large can over rule a bad or unfair law or to reneder moot prosecutorial misconduct. I agree with the premise as long as it is not abused ( example of abuse of jury nullification....OJ simpson )


69 posted on 02/25/2011 11:58:17 AM PST by joe fonebone (The House has oversight of the Judiciary...why are the rogue judges not being impeached?)
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To: Christian Engineer Mass

Jury nullification is an old and ancient right of a free people.


70 posted on 02/25/2011 12:00:51 PM PST by Citizen Tom Paine (An old sailor sends)
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To: RobRoy
Montana State Representative Bob Wagner has proposed a bill in current session in that State Legislature that would clarify the right to a Fully Informed Jury. The FIJA discusses the law here. They quote a recent Montana Supreme Court ruling as follows:
“It has nevertheless always been recognized in practice in this jurisdiction, that the jury has power to disregard the law as declared and acquit the defendant, however convincing the evidence may be, and that the court or judge has no power to punish them for such conduct.”
In the trial of William Penn in London, the Judge demanded that the Jury return a guilty verdict and held them in the Tower of London without food for days. They steadfastly refused his order, and Penn was exonerated. He later founded Pennsylvania.

Jury nullification is a natural right, and long established in common law.

Representative Bob Waqner's proposed law is here. It looks like they are trying to kill it in committee. I might suggest that folks should write the committee members to express support for it.

71 posted on 02/25/2011 12:13:00 PM PST by bvw
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To: yefragetuwrabrumuy
Almost immediately this was corrupted so that there was no way they could *not* violate the injunction, including the use of clearly unconstitutional restrictions.

And even when prohibition ended, these techniques did not. Some are still in use. So while jury nullification might work for a while, a court system that does not care what the public thinks will seek to overcome it.

The current war on drugs is being misused in similar ways to subvert our rights. I wish we actually learned something from history.

72 posted on 02/25/2011 12:13:00 PM PST by zeugma (Ad Majorem Dei Gloriam)
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To: Second Amendment First
"his distributing of such pamphlets at the courthouse entrance violates the law against jury tampering"

If, legally, that argument should be respected, then how are we to classify what the prosecutors and the defense attorneys do when they use professional jury profilers to guide their challenges to prospective jurors from the randomly selected jury pool.

If Federal prosecutors win against Mr. Heicklen in court, then their own rationale needs to be turned against them, in a class action, against their use (and defense attorneys use) of professional jury profilers.

It seems to me that their actions pose the greater example of "jury tampering" than what Mr. Heicklen is doing.

73 posted on 02/25/2011 12:17:12 PM PST by Wuli
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To: RobRoy
each of us can individually decide which way to vote in any way we see fit, even if it’s because you don’t like the guys heairstyle. It’s really only common sense.

You are that cavalier with the concept of due process? Liberty weeps.

There was a case some time ago where the jury convicted based on a coin flip. The jury said that since they all agreed on the coin flip, they thought it would be fine. Instead, there was a mistrial and the guy was retried. Good use of tax money there.

74 posted on 02/25/2011 12:17:12 PM PST by Publius Valerius
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To: Emperor Palpatine
Actually, jury nullification goes back to the beginnings of this nation

Even before the Revolution, and even further back to the early days of British Common Law.

See the case of William Penn (the elder) in the 1600s and and that of John Peter Zenger in the early 1700s.

75 posted on 02/25/2011 12:18:16 PM PST by Ditto (Nov 2, 2010 -- Partial cleaning accomplished. More trash to remove in 2012)
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To: All

typo in post above: “Representative Bob Wagner”, with a “g” ;-)


76 posted on 02/25/2011 12:19:02 PM PST by bvw
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To: Second Amendment First

Talk about attempting to stop free speech.


77 posted on 02/25/2011 12:20:00 PM PST by TheThirdRuffian (Nothing to see here. Move along.)
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To: Publius Valerius; RobRoy

Geesh, Robroy is right, and you’re right too, but not that he was wrong. A coin flip is a mistrial. Common sense.


78 posted on 02/25/2011 12:21:16 PM PST by bvw
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To: bvw

It’s not due process to decide to convict someone because you don’t like his hairstyle. While there is some utility to the concept of jury nullification—and I emphasize some—this notion that juries can do as they please subverts the concept of due process upon which our criminal justice system is based.


79 posted on 02/25/2011 12:24:14 PM PST by Publius Valerius
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To: Second Amendment First
He's not jury tampering. If the judges are that concerned, they can always sequester the jury.

-PJ

80 posted on 02/25/2011 12:25:25 PM PST by Political Junkie Too (In a democracy, you negotiate from the floor of the legislature, not from hideouts and bullhorns.)
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To: Navy Patriot

Just going be the article qoute. Soppusedly it was the Fed Judge who said that.


81 posted on 02/25/2011 12:26:15 PM PST by Ratman83
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To: Publius Valerius

>>You are that cavalier with the concept of due process? Liberty weeps.<<

No, not really. I am not stating what jurys should do. I am stating what jurors legally CAN do. I was not so cavalier when on juries. Rather, I knew the judge to be merely a man, as myself, and used my own good judgement, coupled with the facts at hand, to come to my own personal decision regarding a verdict.

I should point out that both cases I sat on were civil, i.e. lawsuits. I’m a very black and white thinker. If I thought it was worth the time and effort to get the education, I think I would have been an excellent judge. Part of the reason for that, also, is my ability to “ego free” change my position as more evidence avails itself. It’s almost like a game.


82 posted on 02/25/2011 12:30:13 PM PST by RobRoy (The US Today: Revelation 18:4)
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To: Second Amendment First
But federal prosecutors have now taken the unusual step of having Mr. Heicklen indicted on a charge that his distributing of such pamphlets at the courthouse entrance violates the law against jury tampering.

Judges always instruct the juries before they deliberate. When they step over the line, jurors have an absolute right to ignore him. A jury I was on once wanted to see a written portion of the testimony while deliberating. The judge said "no."

We found the defendant unanimously 'not guilty,' in spite of the fact I absolutely thought he was guilty.

There's a principle at risk there.

83 posted on 02/25/2011 12:33:46 PM PST by Publius6961 ("In 1964 the War on Poverty Began --- Poverty won.")
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To: Publius Valerius
this notion that juries can do as they please subverts the concept of due process upon which our criminal justice system is based

Jury nullification helped create the system. Before that, juries basically had to rule whatever way the judge told them to. Jury nullification created the concept that jurors could rule in accordance with their own consciences. Such was the accepted case until the government powers started to crack down on this power of the people in the late 1800s.

84 posted on 02/25/2011 12:35:50 PM PST by antiRepublicrat
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To: Publius Valerius

That’s not right. It is due process. We weigh ALL in front of us. The Jury system keeps the citizens involved in the whole system of law and justice, it raises expectations and by so doing makes better citizens. The modern — perverted — system where citizens coming into juries are treated like trash is the real abuse of due process. Of course juries so treated — and so selected — act irresponsibly. Every narrowing instruction to them tells them they are viewed as imbeciles.

Judges ALSO make determinations of guilt or innocence based on personal appearance, as do police, detectives and prosecutors. Human nature. The trick is to have a culture — a courtroom culture — that empowers responsibility.

When the citizens are cut out and debased, we are left with an autocracy running all legal process — and that autocracy itself becomes corrupted and debased. Look ate the 111th Congress — it was full of lawyers. Look at the judicial tyrants now afflicting our courts.


85 posted on 02/25/2011 12:36:08 PM PST by bvw
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To: RobRoy
I am stating what jurors legally CAN do.

Legally in what sense? A juror won't be arrested or sued for it, but it's not a verdict that will withstand a JNOV or appeal, particularly on a civil case.

Since you bring up civil cases, the concept of jury nullification has no place there. It's one thing to raise the concept in a criminal case, when jury nullification can be an important tool to prevent government oppression, but in a civil case, there is no such risk. Parties conduct themselves according to the law, and are entitled to rely on that law in their interactions with others. It is a gross disservice to the public, and to due process in general, to "nullify" in a civil case.

86 posted on 02/25/2011 12:38:44 PM PST by Publius Valerius
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To: bvw

No, it’s not due process at all. Due process embodies the concept that I, as a defendant, am entitled to a fair trial in which my conduct will be judged against the law and the evidence to determine whether I committed a crime.

To return to RobRoy’s example, if I am convicted because the jury doesn’t like my hairstyle, how have I received any modicum of due process?


87 posted on 02/25/2011 12:42:08 PM PST by Publius Valerius
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To: Publius Valerius

Bookmark


88 posted on 02/25/2011 12:43:53 PM PST by Publius6961 ("In 1964 the War on Poverty Began --- Poverty won.")
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To: Publius Valerius

>>There was a case some time ago where the jury convicted based on a coin flip.<<

Here is the difference, and I see it as “black and white”: When an individual juror votes, his vote is not scrutinized, other than to ask him if it is his vote. The reasoning is INTERNAL and, therefore, secret. When an entire jury flips a coin, it is not individual, nor secret. It is an utterly completely different thing that only appears, on the surface, to be similar.


89 posted on 02/25/2011 12:50:57 PM PST by RobRoy (The US Today: Revelation 18:4)
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To: Publius Valerius

>>Legally in what sense?<<

In the sense that no laws have been broken.


90 posted on 02/25/2011 12:51:52 PM PST by RobRoy (The US Today: Revelation 18:4)
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To: Publius Valerius

>>Since you bring up civil cases, the concept of jury nullification has no place there. It’s one thing to raise the concept in a criminal case, when jury nullification can be an important tool to prevent government oppression, but in a civil case, there is no such risk. Parties conduct themselves according to the law, and are entitled to rely on that law in their interactions with others. It is a gross disservice to the public, and to due process in general, to “nullify” in a civil case.<<

You crack me up! Seriously.


91 posted on 02/25/2011 12:52:43 PM PST by RobRoy (The US Today: Revelation 18:4)
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To: Publius Valerius

There’s only so far one can take a silly argument. But you asked a question. Yes, it is due process. The personal conduct and appearance of the defendant is a critical element to a Juror’s or Judge’s view of that defendant.

You can ask any criminal defense attorney. Yes, a hair style that is abnormal, off-putting or indicates a social negative in the current culture can weigh, and weigh hard against a defendant. Look like a violent gang member, more likely to be found guilty as a murderer.

So, yes, if you are rebellious to the advice of your public defender and come in looking like a criminal, a jury will duly deliberate and find you, with all due process, guilty. Yes, they will also weigh the facts and testimony presented. But they consider all they see. If they see you as a threat to society — bad. If they see you as a upstanding member of society — good.


92 posted on 02/25/2011 12:55:27 PM PST by bvw
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To: RobRoy

Also true. Except that when the coin flip of a whole jury becomes known it is public stink and a Judge must rule a mistrial or risk it becoming a bad habit of juries. It is irresponsible but not reviewable as not as it is not publicly known. It is also likely that among the 12 jurors one will out the bad actions, secrets will out.

But also consider the case of a single juror, in private, flipping a coin to decide. Is that just as irresponsible? No it is not. The juror is making a judgment — to accept the outcome once tossed. A juror might toss a coin, meaning to accept the result, but upon seeing the verdict of chance decide it is wrong. Thus to accept the coin toss judgment is to really gave decided that way. The coin was a tool for the juror to see his or her own mind.

That logic doesn’t apply as well to a whole jury, where the coin toss is way to intimidate the weak.


93 posted on 02/25/2011 1:04:32 PM PST by bvw
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To: bvw
Yes, it is due process. The personal conduct and appearance of the defendant is a critical element to a Juror’s or Judge’s view of that defendant.

My hairstyle has nothing to do with whether I am guilty of the crime with which I am charged. Since the decision of my guilt is being made according to something other than the law and the evidence, I fail to see how I've received due process. In fact, if a juror were to admit that he or she convicted someone based on their appearance, I'm quite certain that the conviction would be reversed, just as the coin toss conviction was set aside.

Your argument seems to be that my appearance, or the appearance of our fictional defendant, could color the jury's view of the evidence. I don't disagree with that as a matter of fact. What I'm saying, though, is that if your juror says "I don't care whether he's guilty or not, I hate people that wear pompadours and, thus, I will vote to convict him." I contend that is a gross violation of due process.

Jurors are not computers that weigh facts and spit out results. I agree that jurors will consider factors other than the evidence. But where I disagree is that if factors other than the evidence color their verdict, it's a due process violation.

94 posted on 02/25/2011 1:07:34 PM PST by Publius Valerius
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To: RobRoy

Indeed. We wouldn’t want a society in which people relied on objective facts to plan their behavior.

It is a much better system when people make up the rules as they go.


95 posted on 02/25/2011 1:09:14 PM PST by Publius Valerius
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To: Ratman83
Yeah, I know.

Judges pop off stupidly on a regular basis. If a judge really wants to get a railroad job done without getting it by a jury, they pretty much have to use a court order, and then contempt, and failure to be very clever in that can cost 'em their bench.

Publicity is their worst nightmare, Caesar's wife, ya know.

96 posted on 02/25/2011 1:10:02 PM PST by Navy Patriot (Sarah and the Conservatives will rock your world.)
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To: Publius Valerius

What a juror says afterward about how they decided — even when under oath — is only a recollection. At the time they made a judgment it is most likely they considered other factors. Humans are humans.


97 posted on 02/25/2011 1:10:41 PM PST by bvw
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To: bvw
In the trial of William Penn in London, the Judge demanded that the Jury return a guilty verdict and held them in the Tower of London without food for days. They steadfastly refused his order, and Penn was exonerated. He later founded Pennsylvania.

I don't believe Mr. Penn was on trial. He was one of the jurors that refused to convict.

98 posted on 02/25/2011 1:11:41 PM PST by zeugma (Ad Majorem Dei Gloriam)
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To: RobRoy

I assume, by the way, you are perfectly comfortable with plaintiffs receiving large verdicts in personal injury cases?

Someone spills coffee on their lap and gets a $100 million verdict. Totally cool with you?


99 posted on 02/25/2011 1:13:26 PM PST by Publius Valerius
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To: zeugma

The Indictment sets forth, ‘That William Penn, Gent. and William Mead, late of London, linen draper, with divers other persons to the jurors unknown, to the number of 300, the 14th day of August in the 22d year of the king, about eleven of the clock in the forenoon, the same day, with force and arms, &c. in the parish of St. Bennet Grace-church in Bridge-ward, London, in the street called Grace-church street, unlawfully and tumultuously did assemble and congregate themselves together, to the disturbance of the peace of the said lord the king: and the aforesaid William Penn and William Mead, together with other persons to the jurors aforesaid unknown, then and there so assembled and congregated together; the aforesaid William Penn, by agreement between him and William Mead before made, and by abetment of the aforesaid William Mead, then and there, in the open street, did take upon himself to preach and speak, and then and there did preach and speak unto the aforesaid William Mead, and other persons there, in the street aforesaid, being assembled and congregated together, by reason whereof a great concourse and tumult of people in the street aforesaid, then and there, a long time did remain and continue, in contempt of the said lord the king, and of his law, to the great disturbance of his peace; to the great terror and disturbance of many of his liege people and subjects, to the ill example of all others in the like case offenders, and against the peace of the said lord the king, his crown and dignity.’

What say you, William Penn and William Mead, are you Guilty, as you stand indicted, in manner and form, as aforesaid, or Not Guilty?

http://www.constitution.org/trials/penn/penn-mead.htm


100 posted on 02/25/2011 1:14:41 PM PST by bvw
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