I was not supporting those throwing out insults. Just pointing out that the playing victim act was childish.
Look, it's the internet. Some people are obnoxious. You included at times. Pretending that this is something new and you're some fragile flower who can't take it, is pretty funny.
And, I should note that one of the guys supporting you was the one who started the "FOAD" trend on this site as he used to use that comment all the time when posting under one of his many previous characters.
I agree that throwing out insults is not a great way to argue. But which had a bigger impact on this thread? His one post with tons of content and a silly insult at the bottom, or you then hijacking the thread with half a dozen "oh woe is me!!!!" comments about how you can't take RD blowing his lid at you for not doing basic research.
You're right, it is the internet, and rather than respond to the childish insults I receive, from now on, I'll try and just ignore them.
He was right about the Founding Fathers. I didn't know that stuff, and I'm glad to now know it. I've expressed my appreciation for this now three times in this thread.
After doing some research this evening, though, turns out I'm right about there being no right to jury nullification. Do you care to admit that your claim that the people in front of the courthouse were simply "informing a juror of their rights as a juror" is wrong as a matter of law? I doubt it.
In case anyone is curious about what the law actually says about jury nullification: It is settled that juries do have this right. However, it is also settled that there is no requirement by the court to instruct juries on this right. In fact, the court has the right to prevent counsel from even mentioning jury nullification.
It is NOT settled that juries have this right. On the contrary, it's settled that they don't. If there was such a right, then the court wouldn't be able to withhold that fact from a jury. Can you find one court that says jurors have this "right"?
The theory, I guess, is that this is a kind of "balance" between the right of juries to nullify bad laws, and the anarchy that would result if juries could just disregard the law altogether.
There is no such right, so that's not what's being balanced.
The most relevant case is U.S. v. Moylan: ***
You are misreading the court in Moylan. They don't say that there is a "right" to jury nullification, they only say that there is the "power." A power is not a right. Notice how in the quote you provided, in the first paragraph the court only speaks of "power" and not "right." The wikipedia page you're quoting is incorrect.
But the judge's right to prevent knowledge about nullification, ends at the doors to the courtroom. Juries absolutely have the right of nullification (even if they can be prevented from knowing about it in court). So the notion that this is a "compelling interest," which justifies stepping all over the First Amendment, is pure bunkum.
It is precisely because there is a compelling interest that this carries past the courtroom's doors. This compelling interest is why the judge's order does not violate the First Amendment.
I should also mention: All of the case law from the past 100 years has come from circuit courts, or state Supreme Courts. As far as I know, the U.S. Supreme Court has yet to weigh in on the matter.
So, it's quite a contentious issue.
Is there a right to nullification in any state or circuit? If not, how is it "contentious"?
More importantly for the subject of this article, there is no right for jury nullification in the Ninth Circuit (the judge and courthouse in this article are in the Ninth Circuit). So anyone standing in front of the courthouse saying otherwise is incorrect. As explained by the court:
The jury's function is to find the facts and to decide whether, on those facts, the defendant is guilty of the crime charged.” Shannon v. United States, 512 U.S. 573, 579, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994). The jury is not to consider the consequences of its verdict, and should be instructed to reach its verdict without regard to what sentence might be imposed. Id. “Jury nullification” occurs when the jury acquits the defendant even though the government has proven its case beyond a reasonable doubt. United States v. Powell, 955 F.2d 1206, 1212-13 (9th Cir.1991). Defendants are not entitled to jury nullification instructions; “anarchy would result from instructing the jury that it may ignore the requirements of the law.” United States v. Powell, 955 F.2d at 1213 (citation omitted). Although the jury has the power of nullification, the jury has no right to engage in nullification. Standefer v. United States, 447 U.S. 10, 22, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980).
Patterson v. Runnels, 288 F. Supp. 2d 1092, 1099-100 (C.D. Cal. 2003).
Here's a little caselaw from the Second Circuit. It's a really long quote, but I think it's very instructive on the issue of whether there's a right to jury nullification:
We take this occasion to restate some basic principles regarding the character of our jury system. Nullification is, by definition, a violation of a juror's oath to apply the law as instructed by the court-in the words of the standard oath administered to jurors in the federal courts, to “render a true verdict according to the law and the evidence.” Federal Judicial Center, Benchbook for U.S. District Court Judges 225 (4th ed. 1996) (emphasis supplied) We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent. Accordingly, we conclude that a juror who intends to nullify the applicable law is no less subject to dismissal than is a juror who disregards the court's instructions due to an event or relationship that renders him biased or otherwise unable to render a fair and impartial verdict.
***
More generally, the very institution of trial by jury in a criminal case, as Judge Learned Hand observed, “introduces a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions.” U.S. ex rel. McCann v. Adams, 126 F.2d 774, 776 (2d Cir.), rev'd on other grounds, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942). This is so because, as Judge Hand explained, “[t]he individual can forfeit his liberty-to say nothing of his life-only at the hands of those who, unlike any official, are in no wise accountable, directly or indirectly, for what they do, and who at once separate and melt anonymously in the community from which they came.... [S]ince if they acquit their verdict is final, no one is likely to suffer of whose conduct they do not morally disapprove....” Id. at 775-76.
***
But as the quotation from the Supreme Court's opinion in Standefer indicates, in language originally employed by Judge Learned Hand, the power of juries to “nullify” or exercise a power of lenity is just that-a power; it is by no means a right or something that a judge should encourage or permit if it is within his authority to prevent. It is true that nullification has a long history in the Anglo-American legal system, see Dougherty, 473 F.2d at 1130-33, and that the federal courts have long noted the de facto power of a jury to render general verdicts “in the teeth of both law and facts,” Horning v. District of Columbia, 254 U.S. 135, 138, 41 S.Ct. 53, 54, 65 L.Ed. 185 (1920); see, e.g., United States v. Trujillo, 714 F.2d 102, 105-06 (11th Cir.1983). However, at least since the Supreme Court's decision in Sparf v. United States, 156 U.S. 51, 102 (1895) (holding that, while juries are finders of fact, “it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them”), courts have consistently recognized that jurors have no right to nullify. See Gordan, supra, at 272, 277 (noting that, with Sparf, the Supreme Court “fixed the law where Lord Mansfield had left it” in King v. Shipley (“The Dean of St. Asaph's Case”), 4 Doug. 73 (K.B. 1784), in which Mansfield had written that jurors have the power, but not the right, to decide the law); Howe, supra, at 589 (referring to Sparf as “the Supreme Court's final and authoritative denial of the [jury's] right” to serve as judges of the law); see, e.g., United States v. Kerley, 838 F.2d 932, 938 (7th Cir.1988) (“[J]ury nullification is just a power, not also a right ....”). As a panel of the Court of Appeals for the District of Columbia Circuit-composed of Chief Judge Spottswood W. Robinson, III, Judge George E. MacKinnon, and then-Judge Ruth Bader Ginsburg-explained:
A jury has no more “right” to find a “guilty” defendant “not guilty” than it has to find a “not guilty” defendant guilty, and the fact that the former cannot be corrected by a court, while the latter can be, does not create a right out of the power to misapply the law. Such verdicts are lawless, *616 a denial of due process and constitute an exercise of erroneously seized power.
United States v. Washington, 705 F.2d 489, 494 (D.C.Cir.1983) (per curiam) (emphasis in original). Indeed, as we noted above, the exercise of this de facto power is a violation of a juror's sworn duty to “apply the law as interpreted by the court.” United States v. Boardman, 419 F.2d 110, 116 (1st Cir.1969), cert. denied, 397 U.S. 991, 90 S.Ct. 1124, 25 L.Ed.2d 398 (1970).
***
Inasmuch as no juror has a right to engage in nullification-and, on the contrary, it is a violation of a juror's sworn duty to follow the law as instructed by the court-trial courts have the duty to forestall or prevent such conduct, whether by firm instruction or admonition or, where it does not interfere with guaranteed rights or the need to protect the secrecy of jury deliberations, see infra Section II.C, by dismissal of an offending juror from the venire or the jury. If it is true that the jury's “prerogative of lenity,” Dougherty, 473 F.2d at 1133, introduces “a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions,” Adams, 126 F.2d at 776, then, as part and parcel of the system of checks and balances embedded in the very structure of the American criminal trial, there is a countervailing duty and authority of the judge to assure that jurors follow the law. Although nullification may sometimes succeed-because, among other things, it does not come to the attention of a presiding judge before the completion of a jury's work, and jurors are not answerable for nullification after the verdict has been reached-it would be a dereliction of duty for a judge to remain indifferent to reports that a juror is intent on violating his oath. This is true regardless of the juror's motivation for “nullification,” including race, ethnicity or similar considerations. A federal judge, whose own oath of office requires the judge to “faithfully and impartially discharge and perform all the duties incumbent upon [the judge] ... under the Constitution and laws of the United States,” 28 U.S.C. § 453 (1994), may not ignore colorable claims that a juror is acting on the basis of such improper considerations.
Accordingly, every day in courtrooms across the length and breadth of this country, jurors are dismissed from the venire “for cause” precisely because they are unwilling or unable to follow the applicable law.10 Indeed, *617 one of the principal purposes of voir dire is to ensure that the jurors ultimately selected for service are unbiased and willing and able to apply the law as instructed by the court to the evidence presented by the parties.
So also, a presiding judge possesses both the responsibility and the authority to dismiss a juror whose refusal or unwillingness to follow the applicable law becomes known to the judge during the course of trial. Rule 24(c) of the Federal Rules of Criminal Procedure provides for the substitution of alternates for “jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties.” Surely a juror is “unable or disqualified,” for purposes of this rule, who is intent on nullifying the applicable law and thereby violating his oath to “render a true verdict according to the law and the evidence.”
Similarly, we conclude that a juror who is determined to ignore his duty, who refuses to follow the court's instructions on the law and who thus threatens to “undermine[ ] the impartial determination of justice based on law,” Krzyske, 836 F.2d at 1021, is subject to dismissal during the course of deliberations under Rule 23(b). This conclusion reinforces the court's inherent authority to conduct inquiries in response to reports of improper juror conduct and to determine whether a juror is unwilling to carry out his duties faithfully and impartially. The rule we adopt applies with equal force whether the juror's refusal to follow the court's instructions results from a desire to “nullify” the applicable law or, for example, as in the cases described above, see supra pp. 613-14, from a perceived physical threat or from a relationship with one of the parties.
Interesting, though extreme example. The death penalty for petty theft would clearly violate the 8th Amendment. Plus, I think they have to give the jury the option of a lesser included, non-capital offense to vote on, or else that violates Due Process under the Fifth Amendment.
Joe, you are entitled to your own opinion but not your own set of facts. And you were indeed lazy. It's called a browser. Open it and read the Constitution. Thanks.
Can you point me to the exact part you think I missed?
Very interesting. For some reason I thought that sending a takedown notice was a prerequisite to filing suit, but looking over 512(c), I see it doesn't say that at all. Thanks!
I had it backwards there. Since the post wasn't by a user, the procedure under 512(c) doesn't apply. My bad.
But you've got me curious... Are you saying that even if this was posted by a user, a notice wouldn't be necessary before bringing suit (assuming they have a registered agent, and assuming they haven't lost their safe harbor for whatever reason)? If so, I had that wrong too. Thanks!
That does sound like it would be a great fair use argument. But it seems to me that this suit ends at the lack of a takedown notice. If the author of the article works for the blog, then my understanding is that a takedown notice would be necessary first.
Or, would a shameless copyright maximalist* such as yourself have the audacity to claim that quoting part of an article on the Democratic Underground forums justifiably warrants the invocation of copyright law?
* Really, just a wannabe lawyer who wishes the litigation never ends.
Righthaven's suit against Democratic Underground wasn't frivolous. How did that suit violate anyone's constitutional rights? Even if the copying is fair use, it doesn't violate anyone's rights to bring the suit in the first place.
I don't think so. You only have to prove your case against the class representatives, i.e., the person or small group of people that are going to represent everyone else in the class. The dead guy would never be a class representative.
On the post: Judge Bans Handing (Factual) Pamphlets To Jurors; Raising First Amendment Issues
Re: Re: average_joe ?
Most of his rants don't seem very lawyerly. I would really really like to know what bar exame he passed.
He's said that he's a law student, not yet a lawyer.
That's right, I'm a lowly law student. Despite what you may have heard, lawyers are people too. :)
On the post: Judge Bans Handing (Factual) Pamphlets To Jurors; Raising First Amendment Issues
Re: Re: Re: Re:
Not if there's a compelling state interest to prevent it.
On the post: With ACS:Law And MediaCAT Shutting Down, What Does It Mean For US Copyright Group?
Re: Re:
On the post: Judge Bans Handing (Factual) Pamphlets To Jurors; Raising First Amendment Issues
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Look, it's the internet. Some people are obnoxious. You included at times. Pretending that this is something new and you're some fragile flower who can't take it, is pretty funny.
And, I should note that one of the guys supporting you was the one who started the "FOAD" trend on this site as he used to use that comment all the time when posting under one of his many previous characters.
I agree that throwing out insults is not a great way to argue. But which had a bigger impact on this thread? His one post with tons of content and a silly insult at the bottom, or you then hijacking the thread with half a dozen "oh woe is me!!!!" comments about how you can't take RD blowing his lid at you for not doing basic research.
You're right, it is the internet, and rather than respond to the childish insults I receive, from now on, I'll try and just ignore them.
He was right about the Founding Fathers. I didn't know that stuff, and I'm glad to now know it. I've expressed my appreciation for this now three times in this thread.
After doing some research this evening, though, turns out I'm right about there being no right to jury nullification. Do you care to admit that your claim that the people in front of the courthouse were simply "informing a juror of their rights as a juror" is wrong as a matter of law? I doubt it.
On the post: Judge Bans Handing (Factual) Pamphlets To Jurors; Raising First Amendment Issues
Re: Legality of "jury nullification"
It is NOT settled that juries have this right. On the contrary, it's settled that they don't. If there was such a right, then the court wouldn't be able to withhold that fact from a jury. Can you find one court that says jurors have this "right"?
The theory, I guess, is that this is a kind of "balance" between the right of juries to nullify bad laws, and the anarchy that would result if juries could just disregard the law altogether.
There is no such right, so that's not what's being balanced.
The most relevant case is U.S. v. Moylan: ***
You are misreading the court in Moylan. They don't say that there is a "right" to jury nullification, they only say that there is the "power." A power is not a right. Notice how in the quote you provided, in the first paragraph the court only speaks of "power" and not "right." The wikipedia page you're quoting is incorrect.
But the judge's right to prevent knowledge about nullification, ends at the doors to the courtroom. Juries absolutely have the right of nullification (even if they can be prevented from knowing about it in court). So the notion that this is a "compelling interest," which justifies stepping all over the First Amendment, is pure bunkum.
It is precisely because there is a compelling interest that this carries past the courtroom's doors. This compelling interest is why the judge's order does not violate the First Amendment.
On the post: Judge Bans Handing (Factual) Pamphlets To Jurors; Raising First Amendment Issues
Re: Re: Legality of "jury nullification"
So, it's quite a contentious issue.
Is there a right to nullification in any state or circuit? If not, how is it "contentious"?
On the post: Judge Bans Handing (Factual) Pamphlets To Jurors; Raising First Amendment Issues
Patterson v. Runnels, 288 F. Supp. 2d 1092, 1099-100 (C.D. Cal. 2003).
On the post: Judge Bans Handing (Factual) Pamphlets To Jurors; Raising First Amendment Issues
U.S. v. Thomas, 116 F.3d 606 (2d Cir. 1997).
On the post: Judge Bans Handing (Factual) Pamphlets To Jurors; Raising First Amendment Issues
Re: Suppose...
On the post: Righthaven Goes After Pajamas Media, Despite DMCA Agent & Strong Fair Use Case
H ard to feel sorry for that guy.
http://en.wikipedia.org/wiki/David_Duke
On the post: Judge Bans Handing (Factual) Pamphlets To Jurors; Raising First Amendment Issues
Re: Re: Re: avg. Joe still barking out of butt
On the post: Judge Bans Handing (Factual) Pamphlets To Jurors; Raising First Amendment Issues
Re: avg. Joe still barking out of butt
Can you point me to the exact part you think I missed?
On the post: With ACS:Law And MediaCAT Shutting Down, What Does It Mean For US Copyright Group?
Re:
On the post: With ACS:Law And MediaCAT Shutting Down, What Does It Mean For US Copyright Group?
On the post: Righthaven Goes After Pajamas Media, Despite DMCA Agent & Strong Fair Use Case
Re: Re:
On the post: Judge Bans Handing (Factual) Pamphlets To Jurors; Raising First Amendment Issues
Re: Re: Re: Re: Re: Re: Re: Re:
On the post: Righthaven Goes After Pajamas Media, Despite DMCA Agent & Strong Fair Use Case
Re: Re:
But you've got me curious... Are you saying that even if this was posted by a user, a notice wouldn't be necessary before bringing suit (assuming they have a registered agent, and assuming they haven't lost their safe harbor for whatever reason)? If so, I had that wrong too. Thanks!
On the post: Righthaven Goes After Pajamas Media, Despite DMCA Agent & Strong Fair Use Case
On the post: Mass P2P Porn Lawyer Tries Filing A Class Action Lawsuit... In Reverse
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Could invoke a law change
http://righthavenvictims.blogspot.com/
Or, would a shameless copyright maximalist* such as yourself have the audacity to claim that quoting part of an article on the Democratic Underground forums justifiably warrants the invocation of copyright law?
* Really, just a wannabe lawyer who wishes the litigation never ends.
Righthaven's suit against Democratic Underground wasn't frivolous. How did that suit violate anyone's constitutional rights? Even if the copying is fair use, it doesn't violate anyone's rights to bring the suit in the first place.
On the post: Mass P2P Porn Lawyer Tries Filing A Class Action Lawsuit... In Reverse
Re: Re: Re: Re: Whats the difference?
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