Radio Free Meredith

I have a favour to ask of all of you. It will take about half an hour to an hour of your time in the next week, though first, for context, you should go read about what happened to Peter Watts.

TL,DR: Canadian science fiction author is accused by Michigan border guards, while he's on the way back to Canada, of having assaulted them. In court, it came out that although the guards struck Watts several times, Watts never raised a hand against the guards. However, he was still found guilty because the law places "failure to comply with a lawful command" -- in this case, a guard's ordering him to lie down -- as "obstructing a federal officer," and "obstruction", by the wording of the law, is considered to be as much of a crime as assault is.

Yes, Americans, Michigan just convicted a man for not lying down and groveling fast enough. The jury, at one point during deliberation, sent a question to the court: "Is failure to comply sufficient for conviction?" It doesn't get a lot clearer than that. And one thing that's especially clear to me is that this is a jury that had no idea what jury nullification is.

See, one thing the American court system has fallen all over itself to hide from the people in the last several decades is the fact that jurors are not only triers of fact: they are also triers of law. The jury is charged not only with determining whether the facts of the case indicate that the defendant did what he was charged with or not, but determining whether the law is a valid one or not. If the jury decides that the law is unconstitutionally vague, or unjust, or applied unjustly, the jury has the right and the authority to find the defendant not guilty, whether the facts of the case support the allegations against the defendant or not.

Jury nullification is one of the oldest components of the common-law tradition upon which US law is based; it dates back to at least the 1500s and probably earlier. It has been applied in the United States both before and after the country was founded; it has been used to acquit Underground Railroad conductors accused under the Fugitive Slave Act, bootleggers during Prohibition, and, less admirably, whites accused of murdering blacks during the era of the Civil Rights movement. (It's a tool. Like a hammer or a gun, it can be used for good or for evil, but the tool itself is morally neutral.)

If the jury in the Watts case had known about jury nullification, they could have said, "It's ridiculous to convict someone of a felony for not lying down fast enough; the law is worded unjustly, and we're not going to convict, on those grounds."

"But, Meredith," I hear you say, "how do you know that the jury didn't know about nullification?" I don't, but I'd put the chances at greater than 80%. The easiest way to get removed from juror selection is to let it slip to the judge or the prosecutor that you know that jury nullification exists. In 1969 and 1972, the Fourth Circuit and the District of Columbia (respectively) ruled that the court may deny the defense the ability to instruct the jury about the possibility of nullification, and in 1988 the Sixth Circuit (which unfortunately includes Michigan¹) upheld a judge's instruction that "there is no valid jury nullification".

Let me spell that out again: the court has recently granted itself the right to refuse to even let the jury know about one of its powers that has a tremendous ability to affect the outcome of a case. The courts are deliberately depriving jurors of one of their most traditional rights, and deliberately depriving defendants of one of the most traditional, if rarely exercised, opportunities for acquittal.

However, the fact that the courts want to put jury nullification down the memory hole doesn't mean that it's going to go there quietly. We have the ability to keep it alive, but we're going to have to work for it.

So here's what I want you to do.

This week, I want you to find three people who don't already know about and understand jury nullification, and explain it to them. They can be Americans, Canadians, Britons, Australians, or anyone else who lives under a legal system derived from the British common law. You don't have to get them to agree with it; just get them to understand it, and to understand that this is a legal right, enshrined in over 400 years of jurisprudential history, that the courts have attempted to dispose of in the last 40 years. You can send them an email or link them to this post if you want, but it's best to do it in person. And get them to promise that they will also find three more people who aren't familiar with jury nullification, bring them up to speed on it, and get those people to spread the word. And so on, and so on.

It is said that rights exist only so long as they are exercised, but more fundamentally than that, a right can only be exercised if people know it exists. I am not asking you to exercise the right; I am asking you to help make sure that this right is not banished into oblivion by such an odious little thing as ignorance.

If you will do this, please leave a comment.

¹I still need to read the decision in U.S. v. Krzyske, whence comes that ruling. If a Michigan jury were to nullify a law, must a mistrial be declared? If subsequent juries continue to nullify, does that mean that they just have to keep retrying and retrying until someone runs out of money?


This work by Meredith L. Patterson is licensed under a Creative Commons Attribution 3.0 Unported License.

As some of you know, I have a rather lengthy post in the works about the history of challenges to initiative amendments in California -- that is, constitutional amendments which are proposed by a petition of the people and decided by popular vote. It's 1500 words and counting, and will probably hit 3000 by the time it's done, but I wanted to make sure that folks who want to understand the precedents coming into play with Strauss v. Horton, the ACLU's challenge to Prop 8, have a good resource for that. However, the following came up on theinated's journal, deep in a comment thread, and I think it's important enough to bring up here.

But first I'm going to talk about software engineering. I promise, it's relevant.

In the code-slinging trade, there's a concept called "shotgun debugging" which makes every seasoned engineer foam at the mouth. The Jargon File defines it as "the making of relatively undirected changes to software in the hope that a bug will be perturbed out of existence". "Relatively" is loosely applied here; typically the code you tweak has something to do with the problem -- if the problem is in your user interface, twiddling with interprocess communication usually isn't going to help -- but you're not sure where the exact problem is, so you poke at a bunch of different places and pray you got it right.

Don't do this. It's practically guaranteed that you will make things worse, most likely by creating new bugs that are subtler, more obscure, and will bite you in the ass for years to come. But keep the concept of shotgun debugging in mind, because we're going to talk about it again shortly.

Elsewhere, lather2002 wrote:

There are ways for same sex couples to have rights that allow them basically the same rights as "Married Couples".

In principle, lather2002 is correct. However, the institution of marriage is deeply embedded in the principles of English common law upon which our legal system is founded, and altering those principles to cover civil unions would involve a massive rewriting of the law which amounts to shotgun debugging of the very worst sort.

Looking only at statutes, we can easily find dozens of areas in which marriage plays a role: tax law, estate/inheritance law, family law, laws having to do with visitation rights (both for hospital patients and for prisoners), property law, insurance law, torts (e.g., wrongful death suits), and so on. Attempting to shotgun-debug the California code in an attempt to create parity between marriages and domestic partnerships is a fool's errand; there are just too many places where marriage is closely intertwined with statutory law to be able to do the job right. California tried to do it all in one go by providing that domestic partners are to have all the rights and responsibilities afforded to married partners, but the very bill that established this also carved out several exceptions. Establishing a domestic partnership requires different prerequisites -- among other things, the couple must live together before becoming domestic partners, which isn't required for marriage -- and it isn't possible to have a confidential domestic partnership (i.e., one that isn't a matter of public record), while it is possible to have a confidential marriage.

However, the matter gets fuzzier. In some situations, the principles of common law protect the institution of marriage in a way that isn't actually codified anywhere. A good example is the notion of privileged communication. There are certain types of communication, such as that between a lawyer and her client, a doctor and his patient, a priest and a penitent confessing to him, which are "privileged" in the sense that neither party can be compelled to disclose the contents of that communication. If a defendant admits to his lawyer that he committed the crime with which he is charged, the lawyer cannot be compelled to disclose this to a third party. Spouse-to-spouse communication is protected in exactly the same way: one spouse cannot be compelled to give evidence against the other (also known as "spousal immunity"), and in fact one spouse can prevent the other from disclosing information which was communicated privately between the two of them (also known as "marital privilege").

For what it's worth, the matter of privileged communication has a lot to do with why the right to marriage is viewed as derivative of the right to privacy -- which is expressly protected (in fact, it's inalienable) under CA constitutional law.

Some states have passed statutes which restrict privileged communication in some form; for instance, Washington state has made attorney-client privilege a one-way street from client to attorney (the client can be compelled to testify against the attorney on matters of communication that don't have to do with the client's communications). California has codified attorney-client privilege the opposite way, protecting all attorney-client communication regardless of subject, but that merely reinforces the common-law definition; it does not expand it. I can't find an example of a law which creates a new class of privileged communication. Expanding privileged communication to domestic partnerships is thus quite difficult, and privileged communication isn't the only area of common law where marriage comes into play.

Shotgun-debugging a body of statutory law is hard enough; how do you shotgun-debug hundreds of years of tradition? Under the principle of stare decisis (literally "to stand by and adhere to decisions"), which obligates judges to follow the precedents established in previous case law, you can't. Only marriage is marriage, and there is no precedent for "domestic partnership immunity"; in this respect, the court's hands are tied. Even if statutory law mandates equal treatment before the law for domestic partners, the court cannot magically create privilege where none exists. There can be no parity between marriages and domestic partnerships.

I'm going to turn back to the Jargon File, now, to address the topic of elegance: "Combining simplicity, power, and a certain ineffable grace of design." Software engineers love elegant code: it's easier to understand, easier to work with, and it's aesthetically pleasing. Linguists adhere to the principle of elegance, too: given two sets of rules which describe the exact same grammar equally well, the one with fewer rules is to be preferred, as complicated rules are difficult to apply and lead to errors.

I'm not going to pretend that law adheres to the principle of elegance -- the sheer size of the California constitution, much less the California code, is testament to that -- but in this instance, we would do well to observe it. If we wish to establish parity between same-sex and opposite-sex couples, the simplest, least confusion-causing, most elegant solution is to legalise marriage between both same-sex and opposite-sex partners.

(This is, incidentally, the fundamental flaw I see in the "then let's make everything a civil union" argument. Taking away spousal privilege is a horrible, horrible idea that would remove the protections of hundreds of years' worth of important, rights-preserving court decisions which hinge on spousal immunity or marital privilege. Please take a look at the bigger picture here; let's not cut off our noses to spite our faces.)