I'm supposed to do jury duty on Thursday. When I've mentioned it to people over the last week or two, most people have either asked me if I can get out of it or said, oh, that sucks. It's definitely not a very convenient time, given that things are hectic right now, both at school and at home, but my honest response is still that I don't mind. I actually take all this civic duty stuff pretty seriously, and I think that serving on a jury is a very important part of that. This is the second time I will have been called. The last time I served was almost a decade ago. I think I was 19 at the time.

In the run up to my jury service, it seems like I'm suddenly hearing about every court case with some sort of miscarriage of justice, and this has got me thinking a lot about the idea of jury nullification and under what circumstances this little-known power of the jury should be used to avoid an unjust conviction. This question is extremely unlikely to come up in the course of my jury service, but it's something I feel I should sort out just in case.

Four Cases of Injustice

Of the four cases I heard about in the last few days, the first in the list was a mild one. There was a Slashdot story about a Michigan man who got arrested and charged with a felony for sitting in his car outside a coffee shop and using their unsecured wireless network. He later plead to a much lesser charge.

The second case was something I saw on Dateline NBC (which I would normally never watch but happened to have on while cooking) about two men found guilty of murder based on flimsy evidence and later exonerated by DNA evidence and two other men who seem to have been convicted in the same town under similar circumstances. Apparently the story of the first two men was documented in John Grisham's true-crime novel The Innocent Man.

Third was the case of a racial feud started at a high school when some black students attempted to sit under a tree on their school campus that had traditionally been a whites only area. Some white students apparently responded by hanging several nooses in the tree. In the ensuing incidents (which occurred over a matter of days or weeks) black students were systematically charged with harsh penalties while white students were let off with little or nothing (even when one pulled a gun on some people).

Finally, there was the story of a 17 year old high school student in Georgia who got a felony conviction, 10 years in prison, and a spot on the sex offender registry for getting a blowjob at a drunken party from a 15 year old girl. By her own account (and video footage taken by another kid at the party) the act was entirely consensual. The harsh punishment is thanks to the fact that these under aged kids had oral sex. If this boy and girl has simply had sex the penalty would have been far less. A kid's promising life is destroyed for a probably fairly common action with no clear victim.

This case is in a way the most distressing, because it seems that there's evidence that even the jury thought the law was unjust, but they knew that this boy had violated the letter of the law, so they found him guilty. Presumably the jurors felt trapped. My guess is that they did not know about jury nullification. Most people don't.

Jury Nullification

Jury Nullification occurs in a case when, according to the facts presented and the instructions of the judge on the law, a defendant is guilty, but the jury finds him not guilty anyway. It's basically just a fact that juries have this power, because a juror cannot be punished for his verdict and the double jeopardy clause of the fifth amendment prevents a person from being tried again after the verdict is in. The end result is that the jury can find however they want, and once a not guilty verdict is entered there's nothing anyone can do to fight it. The question is whether jurors should use this power.

I guess there are two questions related to jury nullification:

  1. Should jurors take it upon themselves to interpret the law even if their interpretation contradicts that given by the judge (e.g. with respect to constitutional rights)?
  2. Should a juror reject the law completely when he feels that applying it would be unjust (either generally or in the specific case at issue)?

My answer to the first is an unambiguous yes. Clearly, if you're on a jury you should respect that the judge is a legal expert who generally knows a lot more about law than you do, but you have to take a judge's instructions as one piece of evidence in figuring out what the law means. It's certainly possible for judges to be biased or just plain wrong, and ultimately it doesn't seem to make sense to hold citizens accountable for following the law unless citizens can also judge the law. This viewpoint seems to have considerably historical support; a number of Thomas Jefferson quotations suggest that the he felt the jury should generally defer to the judge on questions of law but that ultimately the authority was with the jury. That seems like an eminently reasonable position.

The second question, whether a jury should throw out the law when it's unjust, is a bit harder. On the one hand, most of us agree that, I was just following orders is not an excuse for participating in clearly immoral acts. History provides us with many cautionary examples here. But, on the other hand, it would completely undermine the rule of law if juries routinely handed down verdicts based on their feelings about the case rather than the laws. In that sort of a system your verdict would have less to do with what you did and more to do with the luck of the draw in jury selection. So what's the happy medium between these two extremes?

The history of jury nullification seems to be mixed as well. Examples include northern juries refusing to convict people for helping runaway slaves but also white southern juries during the civil rights era that refused to convict white supremacists of their crimes. Apparently, another case where jury nullification is considered to have been widely practiced was during prohibition.

If you accept the idea (seen in both the Declaration of Independence and the Constitution) that people have certain inherent, unalienable rights that no government has authority to violate, then I think it makes sense that jury members refuse to enforce any law that they believe violates fundamental human rights. These would include rights specifically protected in the Constitution but also other rights they believe are self-evident.

But it seems there will be other cases where there's no clear fundamental right that's being violated and yet justice isn't being done. To borrow from my earlier examples, what if that Michigan man were really brought to trial on felony charges with a 5 year prison sentence for using a coffee shop's wireless. He has no fundamental right to leech off someone else's wireless, but still this seems like a clear miscarriage of justice. What about using jury nullification in this sort of case? Ultimately, you're the one returning the verdict, so the responsibility for that verdict, for justice, rests with you. But it seems like there's a significant risk of letting your personal preferences and prejudices replace the law. Still, it can't in any meaningful sense be a government by the people if the people are not the ultimate arbiters of the law.

I think the middle ground is probably that jury nullification should be used only in cases where someone's fundamental rights or the basic precepts of justice (including some sense of proportion between the charge and the crime) are being violated and not in cases where you simply disagree on details of the law or its application. But it's something I'm still not completely decided on.

I looked at a number of sites about jury nullification, hoping to find some insight.

Unfortunately, while interesting, I can't put a whole lot of stock in any of them. I was hoping to find some stuff written by legal experts weighing the issue, but mostly what I found seemed to be one-sided opinion pieces. I get the impression from the sites that this is a hot topic among Libertarians.

Machines Hate Me

Saturday morning the machine we use to process credit card transactions broke down. Its little dot matrix printer stopped working. The machine was all aglow and operating, it just would go through the motions of processing a card only to display (after all that button-pressing) "printer error."
 

The Frat-Boys From Bombay

A call to the 24-7 helpdesk was answered promptly (by someone named "Erik" who sounded more like his name ought to be "Mahmood" - no biggie - I'm certain the other credit-card processing banks now outsource tech support overseas; as does AT&T and myriad other companies). Erik supplied a number of software-related fixes that he suggested I try. I tried 'em, although I was pretty sure we should've, sometime before the third try, cut to the chase and taken the printer module outta the machine and tried hardware-related fixes. I asked Erik if, indeed, they *had* any hardware-related fixes. He told me to first try completely uploading the machine's software (a 25-minute process); just to be certain that we'd exhausted our software-related options.

Once the thing started cogitating, he told me what to do when the "finished" screen was displayed, and very kindly told me that I could call back at that time if I needed any help.

I put a big piece of paper on the machine and wrote on it "do not touch." The moment I took my eyes off the thing one of my waitresses moved the paper and swiped a card. When she couldn't get the answer she wanted from the machine (it just kept cogitating), she pressed "cancel." Then, and only then, did she come to me for assistance. She'd cancelled the software download. It took every fibre of my being not to physically assault her at that moment.

So I called the helpdesk again and this time got "Chip." Chip's voice was much deeper than was Erik's. Chip sounded like the knight in shining armor who comes to rescue the female lead of a Bollywood film from her captors. Chip's English was so hard to understand I was tempted to ask him whatever was a nice guy with a name like Chip doing living in a place like Delhi. But I digress. I told Chip that my software download had been aborted by someone other than I and would he please just give me the codes and help me start over. This was not gonna happen. Every time I heard him shuffling the papers of his tech-support manual in the background I said, "go to the part of the book that tells you what codes to give me to start the software download?"

When it finally occurred to Chip that I'd gone through the previous, half-assed steps (re-cycling the machine, clearing the batch, etc.) he asked me to tell him who told me I needed a software download, anyhow? I told him it was Erik. He told me "There's no Erik working here!" That's when I hung up the phone. Were it not that I had a problem to solve, I would've called the David Letterman show and given them the number for two excellent replacements for his characters "Mujabar" and "Sirajool" (or whatever their names are).

My third call was answered very promptly, by (get this) "Nathan." It took all the restraint I could muster not to blurt out "Nathan, this is unacceptable." I asked Nathan if Erik was there. To make a long story short, it took me 15 minutes to convince Nathan that this wasn't a personal phone call for Erik, but that he'd started me on a software download and I needed to repeat the process.

While I was speaking to the boys in Kashmir, or wherever; it occurred to me to remove the printer module myself and play with it. I took it out, then put it back in again - it made a sickly buzzing sound but wouldn't feed any paper. I pulled it out and looked for obstructions - aha! A bit of cloth had somehow insinuated itself into the workings of the machine. A needle nose and some tugging got the cloth out. Now the paper fed a little bit; printed a couple of test lines; then stopped. The darn thing had burnt out.

When the second software download was completed successfully, and the printer still failed to work, I called back and begged my next victim, "Michael" (whose real name I am certain must've been something like "Farshid" or "Mukbar") to provide me with any sort of hardware-related advice that he or his supervisor could find. They told me to do what I'd already done; remove the printer and put it back (inspecting for offending material). I gave up.

Tomorrow, I'll have to hand-enter the hundreds of credit card transactions taken over the weekend. They were imprinted on one of those old hand-operated machines that actually make use of the raised numbers on one's card.

krenseby says re: May 30, 2007, I wonder why the call center people can't just use their own names.. I heard they force to pick American-sounding names in order to avoid pissing off bigots...." — I agree; If your name is "Gupta" or "Vindaloo" or even "Mergatroid" why not use it? Do these companies think that a person who sounds just like the fellow-from-India-you-buy-your-cigarettes-from-at-the-convenience-store accent named "Erik" is really so transparent that intelligent people won't get it? I think not.

Please be aware that I'm using East Indians as an example herein and have no problem with their accent, so long as it's not so thick I can't understand it. Believe me, when doing business with some of my Chinese vendors, my troubles with the help-desk dudes pale in comparison. And it's my fault, because my command of Mandarin is so poor.
 

The Dance of the Waters

The next machine didn't just sit and smile at me; it actually pissed on me. The ice maker wasn't making ice, they said.

Far be it from me to follow the directions and shut the thing off before attempting servicing, I removed all of the covers, grilles, and insulating parts around the works of the machine. The moment I removed the insulated part that covers where the ice is made; I was showered with cold water. The thing had iced over (due to someone playing with the defrost settings) and was a mass of ice. The water, which was to have been pouring nicely over the grid that makes the cubes, was instead splattering all over this icy chunk.

After I shut off the machine, the same waitress who'd foiled my first attempt at fixing the credit card machine came around the corner, pointed at me and laughed "you all wet - what you do? Take shower now?" I do believe at that moment the water began to boil and steamed off of me.

20 minutes later, the ice maker was good to go.
 

The Straw That Broke The Camel's Back

Driving home after fixing the ice maker (on Memorial Day - my day off) it occurred to me that I have pretty bad luck with machinery. There's a word for those people who make street-lights turn off when they come near, but I can't recall. Maybe I'm one of them.

I thought of the elevators I ride regularly during the week in the course of business in the downtown area. I put my complete faith and trust in them without thought - I press the button and expect them not to break down. Given my luck with mechanical things of late, I'll treat elevators far more respectfully than I have in the past.

Oh, one last thing. I pressed a glass against the ice dispenser on my refrigerator door when I got home. There was some cheap scotch waiting to be cooled. The thing made grinding noises - but not a cube was to issue forth. I reached into the freezer and pulled out a few cubes myself. Just as I started to pour the scotch, I was scared out of my skin when the refrigerator let loose with no less than a half-gallon's worth of ice, right on the floor.
 

I got to the hospital a little after 9:30 with my mom and my husband. I'd been having contractions for over an hour, 5 minutes apart. I was calm and in control, and ready to finally be done with being 60 lbs overweight. I was sick of heartburn, elephant ankles, waddling, and peeing every 70 minutes. My labor progressed nicely at first with no intervention. My water broke on its own, letting loose more fluid than I thought my body could possibly contain. The contractions got way worse, and I got an epidural. Another 5 hours pass, with two nurses, one good, one bad. My mom and my husband told me what a great job I was doing. I wouldn't let them take my glasses away. Finally, the doctor arrived, and the baby started on its way into the world. Numb to everything, I pushed until I felt something inside me would break.

My mom exclaimed, almost crying, "It's a girl!"

Teary eyed and exhausted, for an instant, I gazed at my husband, so happy. And then the doctor introduced me to my son.

And there was never a more perfect baby.

Dear Mr. C———,

I acknowledge receipt of your claim dated 1 December. In order to complete your file, kindly provide a more detailed description of the accident (by e-mail), and a "croquis" indicating where the accident occurred. (You could download a map of Geneva from internet, marking both the accident site and your hotel.) If your doctor prescribed sick leave, kindly also provide a copy of the certificate, indicating clearly the end-date of your incapacity.

I will notify you upon confirmation of the reimbursement by our Accounts Department.

Many thanks, and best regards.

F——— P———


Dear Ms P———,

I enclose a map showing the location of the accident (Place Montbrilliant) and of my hotel (Torhôtel, Rue Lévrier 3), and a sketch showing how the accident happened. Which was as follows:

I had just ridden away from some traffic lights after they turned green and was in front of the other traffic. Ahead of me the road had been dug up and there was not much space between the barrier around the roadworks and the centre line of the road. A tram line coming from the left curved around to follow the road up to the point where it had been dug up. In trying to leave enough space to my left for the cars to pass me I hit the tram line at too small an angle and my front wheel caught in it. The front wheel moved quickly to the right while the rest of the bicycle and I carried straight on on a downwards trajectory. I landed on my left side, reaching the ground so quickly I didn't even have time to let go of the handlebar. My left shoulder and left thigh hit the hardest. The shoulder was squashed in towards my chest and neck, absorbing most if not all of the forwards as well as the downwards momentum of my upper body. When it had reached its limit of movement my head continued moving until it hit the ground and bounced. My glasses flew off and landed about a metre in front of me.

The post office van behind me skidded to a halt about a metre behind me and the driver jumped out. I sat up carefully, picked my glasses up and put them on, then checked my head for damage and checked that I could still move my left arm. Since I could, I assumed that no serious damage had been done, so when the van driver asked if he should call an ambulance, I said no thank-you.

I left the site of the accident on foot, pushing the bicycle, then rode it the last hundred metres to the hotel. About an hour and a half later, when it was clear that there had been a reduction in the mobility of my arm, that this was not getting any better, that my left collarbone was in the wrong place, and that I was in considerable pain and probably shock, I took a taxi to the hospital.

I did not take any sick leave, although Dr. H——— did say the next day that I would have been justified in so doing, particularly given the amount of blood I had lost into the impressive haematoma on my thigh.

I hope this is sufficient.

Kind regards,

J——— C———


Dear Mr. C———,

Thank you for the description and attachments. I will be buying myself a bike helmet on my way home from work today!

Kind regards,
F———

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