The history of jury nullification

The history of juries nullifying laws is very interesting. In yesterday’s post I discussed the celebrated case of John Peter Zenger. But there’s lots more. As Doug Linder writes:

Jury nullification appeared at other times in our history when the government has tried to enforce morally repugnant or unpopular laws. In the early 1800s, nullification was practiced in cases brought under the Alien and Sedition Act. In the mid 1800s, northern juries practiced nullification in prosecutions brought against individuals accused of harboring slaves in violation of the Fugitive Slave Laws. And in the Prohibition Era of the 1930s, many juries practiced nullification in prosecutions brought against individuals accused of violating alcohol control laws.

More recent examples of nullification might include acquittals of “mercy killers,” including Dr. Jack Kevorkian, and minor drug offenders.

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Jury nullification

In a democratic system, laws are created by the people as a means of maintaining order. Unlike in a police state, where compliance to laws is arrived at by using the force of the state security apparatus, democratic societies can only maintain their open nature because of voluntary compliance based on the belief that the laws are just and should be followed. This voluntary compliance is obtained because we believe that we ourselves are the architects of the laws that govern us.

But how do these laws come about?

We are all familiar with how the process works, at least on the Schoolhouse Rock level. We, the citizens, vote legislators into office. These legislators propose bills. Once passed by the legislature and signed by the elected executive, these bills become laws. So we tend to think that we, the people, have created the laws that govern us through the medium of representatives elected to act on our behalf.
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Betraying both principles and friends

(See here for the background to this post.)

During the McCarthy-era HUAC hearings, some people who were called up to testify but did not want to name names and thus inform on their friends and colleagues refused to answer questions using the Fifth Amendment, which says that people cannot be forced to give evidence that might incriminate themselves. While this was effective in avoiding punishment, some felt that this was a somewhat cowardly way out. The Hollywood Ten, including Dalton Trumbo, decided to use a more risky strategy and that was to invoke the freedom of assembly clause of the First Amendment that says that people have a right to peaceably associate with those whom they please and thus do not have to say who their friends and associates are or otherwise inform on them.
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Here is a hypothetical scenario to ponder. Suppose one day government agents, say from the FBI or the Department of Homeland Security, come to you and say that they suspect that one of your close friends is a terrorist sympathizer and that they would like you to act on their behalf, secretly observing your friend and reporting all his or her activities to them. Would you do this?

There are some problems with this scenario. I do not think it is standard practice for government agents to enlist amateurs to help them in such ways because they are unlikely to be good covert operatives and are very likely to give the game away. But given the level of paranoia and fear-mongering that has been deliberately created and the disregard for civil liberties and fundamental rights that characterize government actions these days, variations on the above scenario are not as far-fetched as one would like to think.

I have also written before that extreme hypotheticals such as this one are not good ways of predicting how one would act if such a situation would actually arise because it is hard to predict how one would behave in situations which are far removed from those with which one is familiar. But while such extreme hypothetical situations are not very good predictors of behavior, they are useful devices to think about what principles one lives by.

I started thinking about this about three years ago when a letter that Dalton Trumbo had written to a friend in 1967 was published in Harper’s magazine (March 2004, page 30). Trumbo, who died in 1976, was a very successful screenwriter who refused to testify and name people as Communists or collaborators before the McCarthyite-era House Un-American Activities Committee (HUAC) hearings. The recent film Good Night, and Good Luck (2005) dealt with the events and atmosphere of that time.

As a result of his refusal to name names, he became one of the original Hollywood Ten, a group of writers and directors who were blacklisted by the Hollywood studies and could not get work anymore. He was also convicted of contempt of Congress and sentenced in 1950 to 11 months in prison. After being released, he lived abroad but his work was still sought after and his screenplays appeared under pseudonyms and fronts until 1960 when influential actors like Kirk Douglas got him re-instated. One of his screenplays (under the pseudonym “Robert Rich”) even won an Academy Award in 1957.

If faced with the above scenario of betraying one’s friends, for some the choice will be simple. If the law requires us to cooperate with the authorities and inform on our friends, then that is the right, even honorable and patriotic, thing to do. Although they may disagree with the law, they may feel that they are compelled to follow it, that it is not our prerogative to challenge the law. While we may work to change it, good citizenship requires us to follow the law that is on the books.

In his letter, Trumbo says that it is not that simple. It is not about compulsion and he makes some important points about the nature of the choices that we have to sometimes make:

[A] prominent and liberal producer was quoted as saying: “Look, you people are simply stubborn and foolish. Regardless of what you think of informing it has become a part of the law. The committee and its requirements are part of our time; they are the country; they are the flag. That’s the way it is, and those who refuse to recognize this no longer arouse sympathy; they only isolate themselves and prevent their voices from being heard.”

The more I think of that the more I disagree with it, and the more puzzled I become about the workings of the mind that produced it.

I know and can read the First Amendment as well as anyone. I know it is the basic law of this country. I know that if it goes, all will go. The Warren Court has carefully and specifically outlined the exact method by which persons can refuse to inform. It is almost as if the court had decided to provide citizens with a textbook on how to avoid turning informer.

Thus the court has presented us with a dilemma that lies at the heart of all philosophies and religions, the dilemma best symbolized in the Faustian legend: yield up your principles and you shall be rich; cling to them and you shall be less prosperous than you presently are.

That’s the problem: choice. Not compulsion. Committee or no committee, law or no law, capitalism or no capitalism, movies or no movies, it is the constant necessity to choose that dogs every action of our lives every minute of our existences.

Who is it then who compels us to inform? The committee does not come and ask us to change our minds and give them names and reinstate ourselves. Who is it that denies us work until we seek out the committee and abase ourselves before it?

Since it is neither the court nor the law nor the committee, the man who compels informing can only be the employer itself. It is he, and not the committee, who applies the only lash that really stings – economic reprisal: he is the enforcer who gives the committee its only strength and all its victories.

Disliking the nasty business of blacklisting but nonetheless practicing it every day of his life, he places upon the country and his flag the blame for moral atrocities that otherwise would be charged directly to himself. And thus, since informing has nothing to do with the law and the country and the flag, and since the necessities of his life, as he sees them, oblige him to enforce what the committee can never compel, and since without his enforcement that committee would have no power at all, – what he actually said is that he is the law and the country and the flag.

Then in a moving series of montages, Trumbo reflects on the wide ranging jobs he has had all over the country and the wide variety of people from all walks of life that he has met on those journeys.

And if I could take a census of all the Americans I have seen and of all the dead whose graves I have looked on, if I could ask them one simple question: “Would you like a man who told on his friend?” – there would not be one among them who would answer, “Yes.”

Show me the man who informs on friends who have harmed no one, and who thereafter earns money he could not have earned before, and I will show you not a decent citizen, not a patriot, but a miserable scoundrel who will, if new pressures arise and the price is right, betray not just his friends but his country. Such men are to be watched; I cannot imagine they are not watched.
. . .
I look back on two decades through which good friends stood together, moved forward a little, dreamed that the world could be better and tried to make it so, tasted the joy of small victories, wounded each other, made mistakes, suffered much injury, and stood silent in the chamber of liars.

For all this I am grateful: that much I have; that much cannot be taken from me. Barcelona fell, and you were not there, and I was not there, and perhaps if we had been the city would have stood and the world have been changed and better. But we were here, and here together we remain, and our city won’t fall, and if it should, better that we lie buried among its ruins than be found absent a second time.

Every time I re-read Trumbo’s letter I am moved by its eloquence. It is a powerful statement about what good friends, acting together, can achieve and our responsibility to our friends.

Next: More on friends

POST SCRIPT: Russ Feingold on the escalation in Iraq

Senator Russ Feingold once again speaks clearly to Keith Olbermann about what is at stake in Iraq. When listening to him one gets the impression that he is not carefully targeting his message to pander but is just saying what he really thinks, which is rare in a politician. Perhaps he is a very good actor, but I don’t think that’s it. He just happens to be a person with a sharp mind and the verbal fluency to express his ideas well.

I don’t agree with everything Feingold says but it is definitely refreshing to listen to him.

Some reflections on this blog

Last Friday, January 26th was the second anniversary of this blog which I, of course, completely forgot about since I am not big on commemorating birthdays, holidays, anniversaries, and the like. But such milestones are good occasions to pause and take stock and when I remembered this one later, I started reflecting on what this blog has and has not done during the past two years.

Some thoughts were triggered by the fact that within the last month, two very good bloggers decided to hang up their keyboards and ride away into the sunset. They were the anonymous Billmon at the blog Whiskey Bar (an excellent writer who combined sharp analysis with historical insight into contemporary political matters) and Michael Berube. Berube’s last post reflects on what caused him to start blogging, and then to stop after exactly three years.

Like Berube, I have learned a lot about blogging while doing my own blog. The first thing I realized is that a blogger must have respect for the readers. Over the two years, this blog has received over two million hits and it is inevitable that whatever topic I might be writing about, there are always likely to be many readers who know more about the subject than I do, and also care about it more than I do.

The second thing I learned is that to be a blogger requires one to have skin that is not too thin (so that one always responds courteously to people and not take criticisms as insults, and also to be able to ignore actual insults and abuse and ad hominem comments) and not too thick (so that one does not dismiss or ignore other people’s arguments and comments). The very fact that someone has bothered to take the trouble to read what you have written when they could have been doing something else has to evoke respect for that person. Quite a few of my posts were written to address points made by commenters.

Another important thing I learned is the necessity to provide evidence and sources for as much as possible without making the post an annoying jungle of hyperlinks. Readers have a right to know the basis for my assertions and be able to check them without doing too much tedious digging on their own.

What I have found interesting is that some professional journalists who are now either blogging or otherwise getting immediate feedback from their readers haven’t quite absorbed these lessons. After sometimes making sweeping and inaccurate and unsourced statements, they respond with indignation when these missteps are pointed out by people who have checked up on them. It is as if they feel that the fact that they are the correspondent for a major news outlet gives them some kind of oracle powers that we mortals can only admire with awe.

Those days are gone. Nowadays, everyone can be a fact checker and let others know what they have found. As I have said before, the anonymity and speed that the internet provides does sometimes result in people making remarks in an intemperate way. The journalist (or blogger) has to simply recognize this as a fact of life and let it go. It is true that blogs can be, and have been, the source of much inaccurate information. But they can also serve a very important function of making lazy journalists aware that they need to be more careful about checking their information and the way they present it.

One of the principles I have used in my life is to not waste other people’s time and I have tried to adhere to that for this blog as well. My hope is that readers who spend their valuable time reading it will find useful information, thought provoking ideas, and sometimes just fun stuff to amuse and laugh over.

One of the things about being a writer is that writing does reveal a lot about who you are and this took me some getting used to. I am by nature a private person but I quickly realized that even if I avoid directly talking about myself or my personal life and instead stick to public affairs and write in as objective a way as I can, I cannot help but reveal myself in my writings. I suspect that anyone who has read a varied sample of my postings will have a pretty good idea of who I am and what I value. Although I am not trying to hide who I am, I am also not used to having people whom I don’t know, know me. When I meet someone for the first time and they say “Oh, I read your blog” I am pleased, of course, but also a little disconcerted. Public figures are accustomed to this imbalance in personal knowledge and take it in their stride but I do not consider myself a public figure.

How long will this blog last? I don’t know. It is a labor of love. It does take time to write posts that I think are worth reading and are not sloppily written. In the course of doing so, I have learned a huge deal, often in responding to comments and answering questions. Writing the posts has helped me to sort out my ideas and served as first drafts of articles that have either appeared in print or been submitted for publication and will appear in press. More importantly, it has forced me to learn and present things in a systematic and organized way, instead of just leaving things as a shoe-box full of related ideas and information.

When will I know that it is time to stop? A clue that the time to quit blogging has arrived will be when I start to dread writing the posts and resent the time spent on it. So far that has not happened. I do most of my writing on the weekends and I still look forward to it.

Another clue that it may be time to stop will be when I start repeating myself, and I worry more about this. As the header indicates, I thought that this blog would deal with a wider range of topics than it has. For example, I have written much less than I thought I would about education and learning and science, subjects I care deeply about.

The shift was not caused by a narrowing of my interests but because issues of war and peace have seemed to me to be so urgent and occupy so much of my thoughts that I feel compelled to write about politics more than I perhaps should. I don’t feel that I am repeating myself in terms of actual content but I do feel that I may be focusing too much on politics, especially Iraq and the Middle East. But a blog does also serve as an outlet for pent up feelings and so as long as I feel angry about the senseless death and destruction currently going on, and the dangerous policies advanced by the Bush administration, and its blatant disregard for the human rights, the constitution, and the law, politics will likely continue to dominate.

But in terms of actual content I have rough notes of lots of ideas on a whole variety of topics so there is no danger of running out of material. In fact new material keeps coming in faster than I can use them, and some interesting topics simply lose their timeliness and get shelved permanently, much to my regret.

So here’s to another year of blogging. And thanks for reading.

POST SCRIPT: Voice mail rant

When I spot a grammatical or typographical error in a newspaper, I usually find it mildly amusing but do not get outraged. After all, newspapers are on a tight deadline and are bound to let the occasional mistake slip through. But some language purists get really upset. Listen to this rant that was left on a newspaper editor’s voice mail.

Why I stopped watching football

Super Bowl number something or other is being played this coming Sunday. There was a time, even quite recently, when I would have looked forward to the event, and planned on seeing it with some friends. Nowadays I can barely muster up the interest to even turn on the TV towards the end to see the result.

My initially strong interest in football began immediately after I arrived in the US to do my doctorate in physics at the University of Pittsburgh. I was there during the period 1975-1980 when the famed Steelers “steel curtain” defense and spectacular offense led them to four Super Bowl titles in six years. Joe Greene, Jack Lambert, Terry Bradshaw, Lynn Swann, and Franco Harris dazzled fans week after week. At the same time the University of Pittsburgh football team won the national championship and its running back Tony Dorsett won the Heisman trophy. And if that weren’t enough, the Pittsburgh Pirates won the World Series. So the town went crazy, and it was all sports all the time.
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Challenging the sacred

Author Salman Rushdie recently reflected on an aspect of his own education, in opposing an attempt by the British government to pass legislation for a ban on incitement to “hatred against persons on racial or religious grounds.”

At Cambridge University I was taught a laudable method of argument: you never personalize, but you have absolutely no respect for people’s opinions. You are never rude to the person, but you can be savagely rude about what the person thinks. That seems to me a crucial distinction: You cannot ring-fence their ideas. The moment you say that any idea system is sacred, whether it’s a religious belief system or a secular ideology, the moment you declare a set of ideas to be immune from criticism, satire, derision, or contempt, freedom of thought becomes impossible.

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Thanksgiving and Christmas musings

(Because I am taking a break from blogging for the holiday, this is a repost from Thanksgiving of last year, slightly changed and updated. Happy Thanksgiving everyone!)

For an immigrant like me, the Thanksgiving holiday took a long time to warm up to. It seems to be like baseball or cricket or peanut butter, belonging to the class of things that one has to get adjusted to at an early age in order to really enjoy. For people who were born and grew up here, Thanksgiving is one of those holidays whose special significance one gets to appreciate as part of learning the history of this country. As someone who came to the US as an adult and did not have to learn US history in school or did not have the experience of visiting my grandparents’ homes for this occasion, this holiday initially left me unmoved.
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Stupid young men tricks

As readers of this blog must have gleaned by now, I tend to be very wary of blanket generalizations and stereotyping. These tend to be harmful because the differences within groups are usually vastly greater than the differences between groups, making comparisons between individuals in different groups largely meaningless. But there is one generalization of which I am getting more and more convinced and that is the following: All men between the ages of 15 and 25 are idiots.

Ok, that may be a little too strong. But it definitely seems to be the case that men within that age range they have very little idea of the possible negative consequences of their actions.

Recent events have cemented this view. Here are some examples:

Exhibit A:

Howard McFarland Fish, 21, a U.S. citizen from Connecticut and a college student LaFayette College in Easton, Pennsylvania “was detained Friday after customs agents found what they suspected was dynamite in his checked luggage.”

He was returning from Buenos Aires. In addition to the dynamite, he had a blasting cap, a homemade fuse and a quarter-pound of ammonium nitrate. And why did he do this?

“The passenger said he had been exploring mines in Bolivia and purchased the dynamite as a souvenir.” (my emphasis).

Although the authorities feel that Fish is not involved with terrorism, he has been charged with breaking security laws and could face up to 10 years in prison and fines up to $250,000.

How can any one in their right mind, in these days of almost paranoid fear and security, even think of taking dynamite on board a plane as a souvenir? The only explanation is that Fish is an idiot by virtue of age.

Exhibit B:

A 20-year-old grocery store clerk who authorities say amused himself by posting prank Internet warnings of terrorist attacks against NFL stadiums was arrested Friday on federal charges that could bring five years behind bars.

Jake Brahm of Wauwatosa, Wis., was accused of writing messages that said terrorists planned to set off radioactive “dirty bombs” this weekend at football stadiums in seven cities, including Cleveland. He admitted posting the threat about 40 times on various Web sites between September and Wednesday, authorities said.

Apparently Brahm was having some sort of contest with a friend to see who could post the most scary notice on the internet.

Exhibit C: Myself.

I cannot help but feel a sense of empathy with Fish and Brahm because when I was in that same age range, I was also an idiot. (Some might argue that I still am, but that does not negate the point I am making here.) I recall doing things at that age that now horrify me.

For example, when I was in high school, my friends and I repeatedly went out on a nearby lake in a small leaky rowboat. The boat did not have any life jackets and we could not swim. None of us were even experienced oarsmen and spent much of our time going around in circles. The lake also had snakes and alligator-like monitor lizards that could be up to five feet in length and there were occasions when some in the boat were alarmed by their presence nearby and rocked the boat violently, trying to get away. It would not have taken much to capsize the boat and we would all have been done for.

When I was in college, I also recall how three of us would ride on my friend’s Vespa scooter, which barely had room for two, or two of us would ride on my other friend’s moped which really could only seat one, with the passenger sitting on tiny rack over the rear wheel. We did not have helmets and Sri Lankan roads were notorious for being congested and full of bad drivers. An accident could have easily happened that could have either killed or maimed us.

Why did I do these things which, looking back, were indubitably crazy? I have no excuse to offer and can only plead insanity by virtue of age.

What is worse was that I did not even think of the things I did as particularly dangerous. I suspect that Fish and Brahm, like me, never gave the slightest thought to the possible dangers of their actions and its adverse consequences.

And the behavior gets worse when young men are in the company of other young men, which seems to have a multiplier effect on stupidity. As someone once said, if you look closely, just before a young man does something particularly stupid, his words are likely to be “Hey guys, watch this!”

Do men have a special idiocy gene that gets turned on at 15 and then gets turned off at about the age of 25?

Maybe this is why military recruiters target this age group. They are the ones who are willing, even eager, to sign on to risk death by being sent to wars at the whim of older men, and to even think of this as ‘adventure’. If armies were restricted by international treaties to not have soldiers under the age of 25, we might have far smaller armies and fewer wars.

POST SCRIPT: Bizarro cartoon

The Tuesday Plain Dealer had this funny Bizarro cartoon, illustrating the point I was making on that very same day.


Why we must learn to see ourselves as others see us-4

(Continued from yesterday.)

Strong allegiance to a tribe, and the belief that one’s tribe is better and more virtuous than others may actually cause members of your own tribe to act in worse ways than they might otherwise do. First of all, people who have a high sense of self-righteousness and an inflated sense of their own virtue are capable of committing the most heinous of crimes because they think that just because they belong to a good group, the acts they commit for the benefit of that group must be in the service of good too. They lack the questioning doubt and self-reflection that lies behind truly ethical behavior.
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