Judge Weinstein: Juries Should Know If Mandatory Minimum Applies

U.S. District Court Judge Jack Weinstein ruled this week that juries should be told before they deliberate if a defendant is facing a mandatory minimum sentence. The 236 page opinion is available here (pdf). [Hat tip to Sentencing Law and Policy].

As a result of his ruling, a child p*rn defendant caught a break. That alone has been enough to make the media take notice. But defense lawyers face this every day with drug defendants. [More...]

In a federal case I've written about a few times because I handled the appeal, the defendant, 23 years old, no prior felonies, living in California, was fingered as the source of 250 grams of crack when the mule was busted in Colorado. The mandatory minimum sentence was 10 years. After the trial was over, the judge added 4 kilos of crack on to the 250 grams when another cooperating defendant said at his sentencing hearing, with no corroboration, that he had bought a kilo a month from this person for four months. The sentence: Life in prison, no parole. The last paragraph of the 10th Circuit's opinion affirming the sentence read:

Although it is tragic for a twenty-three-year-old to spend the rest of his life in prison, Congress has provided this penalty for drug crimes involving large quantities of cocaine. We must follow the law.

The rule has always been that juries decide whether a defendant is guilty or not guilty and the judge decides the sentence. But under the sentencing guidelines, the judge decides the quantity at a sentencing hearing long after the jury has finished its work. At the sentencing hearing, the burden of proof is preponderance of the evidence, not proof beyond a reasonable doubt. Hearsay is allowed. So when a judge decides, without the jury, to add on four kilos to the 1/4 kilo the jury found, and change a ten year sentence to a sentence of life without parole, he's changing the finding of the jury.

There are other subtle ways this comes into play, and not just in federal court. I remember trying a case in the '80's where three defendants had brought some cocaine to Colorado from California in a suitcase. My client was the mule. First offense. He had been in this country for a week, looking for a job and spoke no English. Young 20's. Married with babies. The three were tricked into coming to Colorado, to a motel, where the delivery was videotaped.

While distribution of coke carried a 4 to 8 year penalty, if you imported it into the state of Colorado, you were a "special offender." What the jury wasn't told, was that if they found the defendant was a special offender, the judge would have to sentence him to between a minimum of 24 years and a day and a maximum of 48 years.

He got 24 years and a day. Several years later, I was checking in at the airport in Denver to fly somewhere when the airline person helping me recognized me and said she had been on the jury. Because the foreman had attended the sentencing, she knew the judge had given the defendants 24 years and a day. She was appalled.

Every few years I check the Department of Corrections Database to see when he's getting out. Last I checked, it was this year. What does he have to go back to?

Law professors will argue from their ivory perches that juries should be kept in the dark as to sentencing matters. See, Orrin Kerr. I think Simple Justice makes a better point.

Of course, this was not a decision to be read with a pointy hat on one's head. That's the hat one wears when blinding affirming precedent, never to be changed once carved in stone.

One has to assume that Judge Weinstein realizes that his decision will not be embraced by the Second Circuit, with a rousing chorus of Kumbaya following oral argument. Judge Weinstein is a brilliant jurist, but more importantly, a fearless one. He's been around long enough to have gotten beyond the desire to climb the ladder of judicial importance, and now seeks only to do whatever he can to make people think. He knows the harm the law can do, and is trying, in his own way, to change it.

For those who criticize judges for activism, Judge Weinstein is unlikely to be their model of the perfect judge. For those who are slaves to stare decisis, this decision is going to make their hair stand straight up. But for those who believe that Congressional micromanaging of the criminal justice system to meet some politically valuable vision of an acceptable tyranny of the majority, who are happy to do as much harm as necessary to those who bring inadequate political clout to the table, and for those who continually seek to find a more fair and just system despite its inherent inadequacies, Judge Jack Weinstein is a hero.

There is little likelihood that smaller minds with narrower visions will find Judge Weinstein's decision persuasive or legally fulfilling. But that wasn't the judge's point. At least he got some people thinking, and so he accomplished his goal to some extent. Hopefully, more people will learn of of this decision, a discussion will ensue, and Judge Weinstein's effort will not have been in vain.

I find Weinstein's reasoning persuasive. But then, I'm not a scholar, just an advocate. He notes:

In 2005, the Supreme Court considered whether the Sixth Amendment is violated “by the imposition of an enhanced sentence under the United States Sentencing Guidelines based on the sentencing judge’s determination of a fact . . . that was not found by the jury or admitted by the defendant.” Booker, 543 U.S. at 229. It is well settled, the Court noted, that the Constitution protects “every criminal defendant ‘against conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime with which he is charged.’” Id. at 230 (quoting In Re Winship, 397 U.S. 358 (1970)).

There are two issues at play here. One is the Sixth Amendment, which I think applies to the federal appeals case I describe above. The other is jury nullification, which would apply to the state case.

As Judge Weinstein notes:

Those who would limit the powers historically exercised by juries must now consider the Supreme Court’s Booker-Apprendi line of sentencing decisions, see United States v. Booker, 543 U.S. 220 (2005); Apprendi v. New Jersey, 530 U.S. 466 (2000), and its reinvigoration of the Confrontation Clause in Crawford v. Washington, 541 U.S. 36 (2004).

These decisions bear on the question of whether juries should be informed of the sentences that would result from guilty verdicts. They emphatically reaffirm three propositions that support the argument that juries can be trusted with this information.

First, the right to a jury trial is a fundamental constitutional right; it provides a check on the courts, executive, and legislature equivalent to that of the voter on elected officials. Second, the Supreme Court, in interpreting the Sixth Amendment, relies on criminal practice the Court believes existed in the late eighteenth century. Third, the Supreme Court is willing to overturn long-established federal law, with some measure of reasoned disregard for the consequences of doing so, when it determines that precedent impinges on the powers historically exercised by juries (or, in Crawford, the historical scope of the confrontation right).

These three principles make it inappropriate to cavalierly and without analysis treat jurors' power to refuse to convict (or to be informed of mandatory minimums) as improper.

Kudos to Judge Weinstein, and may his opinion be read and considered by judges everywhere. As always (think Arlo Guthrie and Alice's Restaurant here) first it takes one person, then two, then three, until it becomes a movement.

A movement is what's needed.

< You Wouldn't Do a Dog This Way | Tuesday Open Thread >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort:
    Good legal coverage like this (4.66 / 6) (#3)
    by AdrianLesher on Tue Apr 08, 2008 at 12:54:30 AM EST
    makes Talkleft particularly valuable.

    thank you (5.00 / 3) (#4)
    by Jeralyn on Tue Apr 08, 2008 at 01:03:02 AM EST
    it's what I know best and believe it or not, prefer to write about.

    After what SCOTUS did on the (none / 0) (#1)
    by myiq2xu on Tue Apr 08, 2008 at 12:50:51 AM EST
    Andrade decision (upholding a 25-life sentence for shoplifting under California's 3-strikes law) I have no faith in the appellate courts to deliver justice anymore.

    that certainly will be true (5.00 / 2) (#2)
    by Jeralyn on Tue Apr 08, 2008 at 12:54:03 AM EST
    if McCain is elected President and nominates our future judges. I retain some hope that if Hillary or Obama is elected, there's a slight chance for improvement.

    One Must Be Careful (none / 0) (#21)
    by NMvoiceofreason on Sun Apr 13, 2008 at 08:15:07 PM EST
    When seeking the end of another's life, through any means. What you seek may be what you meet, and your idealogical children may be malformed monsters, indeed.

    Since when did we get the idea from the Judeo Christian ethic that people could not be redeemed? In the early years of our Republic, crimes and their penalties were limited to seven years. The only alternative was for capital crimes, much more limited than todays. Now we can reach back twenty years to convict someone on a he said / she said crime that may never have existed in the first place...

    So the death penalty for jaywalking is the only alternative. These people can never be corrected, that part of the system died long ago. Now they can only be recruited by gangs and Al Qaeda, because they are the only ones who offer them any hope of a life.

    So your lust for death in the mirror of the Universe gets transformed by your collective Karma into lust for YOUR deaths, and it cannot be assuaged until it tastes your blood.

    This law is not a secret either. You knew what it said, still you chose to destroy the lives of others. What are you contributing to society by destroying THEIR lives?

    Check your statistics. The reasons for the drop in crime are purely actuarial. Period. So you are torturing, maiming, and destroying their lives for NO REAL BENEFIT.

    Enjoy your fate, for none of us but you may change it. But I beg of you, before you completely lose your way to enlightenment in the Hells you have created, that you turn back to a path of compassion.


    As much as I love Judge Weinstein... (none / 0) (#5)
    by Alec82 on Tue Apr 08, 2008 at 01:31:12 AM EST
    ...(he comes up in my Complex Civil Litigation class all the time), portions of the preamble are basically incomprehensible:

    There is merit to defendant's assertion that the statute charged violates the First
    Amendment free speech protections of persons in their own homes viewing, reading, or hearing
    what they wish, but it cannot be said the statute is unconstitutional on this ground


     I actually worked on some of the issues addressed in this case when I was a law clerk for the Federal Defender office last year, including attempts to litigate receipt versus possession.  These cases are fascinating from a legal perspective because a lot of the questions are new, there are discovery issues because of the Adam Walsh Act, fourth amendment issues regarding laptop searches, etc. I personally think it is the cutting edge, at least in federal criminal litigation, along with Booker issues.

     Just from skimming I am almost certain he will be reversed.  I have mixed feelings, as is often the case with Weinstein.  


    interesting (none / 0) (#6)
    by cpinva on Tue Apr 08, 2008 at 03:51:55 AM EST
    economics may hasten what the legislature has fouled up. mandatory minimums are placing an excessive burden on the prison system; playing politics has a price tag for the citizenry.

    i note that california (and probably others) is considering early release to make room for more. i suspect this will be a continuing trend, as the voters refuse funds to build more jails.

    Wisconsin's repeal of mandatory minimums (none / 0) (#13)
    by Ben Masel on Tue Apr 08, 2008 at 11:01:09 AM EST
    was buried in an emergency budget deal the day before Christmas in 2002.

    Only 1 State Senator and the lame duck Republican Governor knew it was in the package at the time it was voted.


    Amen, I am a proponet of Jury Nullification (none / 0) (#7)
    by Saul on Tue Apr 08, 2008 at 06:36:54 AM EST
    I am a proponent of Jury Nullification.  I feel that juries are not on an equal plane with the rest of the court's participants and are intimidated by this unequal separation, especially by the judge, who at times in a very condescending and God fearing tone instructs the jury panel, "You must follow my instructions and you are not allowed to vote your conscious or on the morality of the law in the case that is before you".  Sometimes the judge gives the jury the impression that if you do not follow my instructions I will punish you.  This fear mongering approach is totally wrong and has probably been responsible for many wrongful verdicts.   Moreover, a judge's over zealous and strict instructions like the one I describe in my opinion could be construed as borderline jury tampering.   I believe the jury should be recognized to be on an equal plane as the presiding judge, since they are the ultimate judges. If I were writing the rules, I would emphasize to the jury that they have the ultimate power in deciding the case before them and that they are probably the most import link in the entire trial process.  Let them know that no one should try to coerce the jury's decisions, to include intimidating judges.  They should be made to feel at ease by showing them the power they posses, the importance of their decision and that they have nothing to fear for their final vote of guilty, not guilty or if they reach an impasse.  Applying this would give the jurors a more dignified role and would give them their due respect which in turn would bolster their ability to arrive at more intelligent verdict than when they are in a robotic mode.  Yes you would still instruct the jury to follow the facts of the case as presented by the defense and the prosecution but you would also remind them of their power to nullify,    If juries have the complete picture of their power, they will probably not abuse the jury nullification process or try to secretly use it, however, they will know that the power to nullify is there and that it can be used if they decide that the law in question is immoral or just a bad law without any fear of reprisal.    I don't' have to be a lawyer or a judge to be qualified in deciding if something is immoral or just a bad law.  Apparently some judges or lawyers only feel comfortable in deciding the morality of a law only after they receive their scholastic credentials.   That is there problem.  Unfortunately, jury nullification is not the current order of the day.    Today if a juror or perspective juror brings up the theory of jury nullification in any manner it's over for that juror.  However, a juror can secretly use this power, but he or she has to be careful not to divulge it, for fear of being punished or removed.  I would like to see this reversed, so you could openly discuss jury nullification at the Voir Dire and at the moment of the judge's instructions with out any reprisals.  The opponents of Jury Nullification say it will create lawlessness. I disagree.  There are many past cases where a jury was not given all the facts or some exculpatory information was held back by the prosecution only for that jury to find out later had this or that piece of information only been know by them they would not have voted to convict or how the missing or retained facts might have helped them in deciding that the law in question was a bad or immoral law. That's not saying much for preventing lawlessness using the current system.  I think the prosecutors who are the major opponents speak from both side of their mouth at times, especially when you see some prosecutors who know a crime has been committed but refuse to prosecute.  The Bush legislative bill signing statements in my opinion are prosecutorial nullification on a grand scale when with a wink and a nod Bush acknowledges to the other government agencies that he is not a proponent or supporter of the bill he is signing into law.   This is instant nullification and is probably an impeachable offense.

    There is a case I saw on the internet where the grand jury was ill advised by the prosecutor by not telling the grand jury that even though they could be shown probable cause for the allege crime, they still had the right not to indict.  The case was U.S Court of Appeals for the 9th Circuit, Appellate v Leya-Garica, Appellate v David Gamboa Aristegui, Appellate v, Marcucci.   The court ruled that all three were erroneously charged and convicted because the grand jury was not notified that they had a choice not to indict even if there was probable cause for a formal charge. Appellate reversed.

    Another famous case is the Laura Kriho case, in Colorado. This was a drug case.  Laura was the hold out juror in the case and was found in contempt of court by the judge for failure to disclose her personal feeling and experiences on drugs. Apparently, Laura after the trial told another juror on how she really felt about drug cases and her own personal experiences on drugs. This got back to the judge.  What is unique here is that no one during the Voir Dire had asked her if she had an opinion on drugs.  She was picked as one of the jurors.  The judge said even if no one ask you a direct question on drugs or the type of case you have been called to decide you have to volunteer how you feel about a particular topic during the jury selection process. The key word that makes this case unique was the word volunteer.   "Laura Kriho is the first person convicted of violating this newly minted crime of failure to volunteer information during jury selection." The upper courts ended up dismissing the contempt charge.

    TL, the one argument no one ever seems to make (none / 0) (#8)
    by scribe on Tue Apr 08, 2008 at 07:40:23 AM EST
    on the issue of "letting the jury know" seems to me, anyway, to be the simplest of them all.

    It seems just about everyone was told when, as a kid, they broke some rule or another, that "ignorance of the law is no excuse".  That sort of misstates the presumptions that do, in fact, exist in the law.  In the state where I do most of my practicing, these are stated thusly (I paraphrase, but without changing meaning):

    1.  Every competent adult is presumed to be aware of and know the statutory law of this state (at a minimum, to the extent necessary to guide their conduct so as to be able to comply with it).
    2.  All lawyers admitted to practice in the state are presumed to know not only the statutory law of the state, but also the common law decisions concerning this state's law.

    OK, so where does this leave us?  The syllogism I propose:  

    Well, if you're going to seat a jury, they all have to go through voir dire.  

    And in voir dire, two  of the things tested are
    their status as adults and their competency.  (I've had  an elderly juror or two literally wandering the courtroom and jury box and so out of it they had to be excused from service - during voir dire.  It happens.)

    If the potential juror is competent enough to sit, i.e., pass voir dire, then they are, as a matter of law, presumed to know the statutory law of their jurisdiction.

    Sentencing, in all its forms, is set forth by statute.  That goes all the way back to the earliest cases decided by the Supreme Court (John Marshall era), which eliminated common-law crimes from the US legal lexicon.

    The same goes for the actual crimes charged.  All established by statute.

    If the jurors are already presumed as a matter of law to know the statutory law, and sentencing is set forth by statute, then the jurors are presumed - as a matter of law - to already know what the law of sentencing is.  

    Therefore, telling the jury what they already (are presumed to) know can have no deleterious effect on their deliberations.  It doesn't change the set of knowledge the jurors have.

    I would even go so far as to say that this has particular force in non-guidelines, i.e., mandatory minimum sentence, cases.  There, we are well aware that the politicians say that these mandatory minimums are reserved for the most grieveous and dangerous offenses and offenders.  There is a lot of publicity attending their passage - pols posing with grieving parents, press conferences, triumphal junk mail bearing the sponsor's frank in lieu of postage, etc.  

    Fine.  The government wants to make hay out of passing the laws, then they have to acknowledge the jurors know about it, and cannot avoid the jurors being reminded of it.

    As to Kerr - he's not worth listening to other than to keep an eye on the next silliness he's hatching.  I'm sure I have more jury trial experience now than he ever will, and I take his telling me what goes on with a jury with the appropriate disdain.  In that regard, he's pretty much like a 13-y/o boy explaining all there is to know about women.

    With all due respect to Scribe, I must disagree (5.00 / 0) (#15)
    by jccamp on Tue Apr 08, 2008 at 09:37:52 PM EST
    with his central assertion, i.e. "If the potential juror is competent enough to sit, i.e., pass voir dire, then they are, as a matter of law, presumed to know the statutory law of their jurisdiction."
    Since Scribe is evidently an attorney, he is well aware that this statement is completely inaccurate. Factually, a jury member swears to ignore his/her own theories or understanding of statute and law, and agrees to abide by the instructions of the judge, insofar as the elements of the charged offense and other matters of law. No jury member is ever allowed to substitute his/her own thoughts and interpretations of statute for that of the presiding judge. If, for instance, a judge decides that some question and answer are improper, then the jury may be instructed to ignore the statements. Jury members don't get to think about instructions like this, and decide for themselves. Their single purpose and obligation is to consider the evidence presented (as allowed by the trial judge) with the interpretation of statute by the judge, and then decide if the evidence meets the burden as described by the judge. The potential sanctions faced by a defendant have nothing - zero- nada - to do with the jury purpose of evaluating evidence and making a factual determination of guilt or non-guilt.
    If, on the other hand, we decide to allow emotion and subjective arguments (like "Do you want to send this poor fool to prison for x years?"), then we will have to also allow emotion and non-factual arguments from the prosecutors ("He's done this before...5 times!" or "Why wouldn't he speak on his own behalf? Because he's guilty, that's why.")
    There's a reason jurors are sometimes sequestered, why newspapers and TV's which might broadcast opinions and emotion about the crime at issue are kept from jurors. It's so they will not become inflamed by indignation and vote guilty without a sound basis in factual determination, ala Sam Shepherd (Hope I spelled his name correctly). Well, these rules must apply to both sides.
    One last thing: most criminal statutes provide for a fairly substantial range of sentence, usually described as "no more than X years..." A judge might sentence a defendant to probation, a suspended sentence all the way up to a statutory
    maximum of some years. Minimum mandatories normally apply only in fairly heinous cases, or with multiple prior convictions. The basis for minimum mandatory sentences is well defined. There is most often a requirement that a judge explain his reasoning, including departure upward or downward, for purpose of appellate review. If mandatory sentences are inherently evil or wrong, then the solution is to repeal the laws that provide for them, not irresponsibly abandon established precedent with the potential for applications unseen and not considered.

    I am not an attorney (none / 0) (#16)
    by herb the verb on Wed Apr 09, 2008 at 07:17:22 AM EST
    so I can understand that my layman "theories or understandings" of laws charged broken in a case cannot supercede what a judge instructs, but you are arguing that jurors are supposed to be kept actually IGNORANT of the laws upon which they are meant to convict a fellow citizen (presumed innocent, right?).

    Bringing in arguments about "emotional appeals" is a red herring. The laws are the laws, that is different than peoples actions or characterizations of events (if a certain law has an "emotional appeal", I would like to see that because it must be an incredibly bad law). In fact, prosecutors already have a pretty strong hand in that department, evidenced by conviction rates in the 90s.

    The laws that a defendent are charged with breaking should be described IN FULL to the jury, including the proscribed punishments, if they include mandatory minimums then let that hang out there too. We (non-lawyers, fellow citizens, the jury pool) are not children, we are grown-ups and can take factual information, including the specifics of the laws charged broken and come to a decision based on the evidence and what we think is the truth.  


    Actually, that's not quite right (none / 0) (#18)
    by jccamp on Wed Apr 09, 2008 at 09:09:15 AM EST
    "...you are arguing that jurors are supposed to be kept actually IGNORANT of the laws..."

    No, that's not the argument. Determining the guilt or non-guilt of a defendant is the sole province of the trier of fact, in our hypothetical, the jury. Determining the sentence of a convicted defendant is the sole province of the judge, even in the extreme of capital cases which require a jury recommendation, which the judge can ignore. Jurors must be isolated from the issue of sentence so that they are not influenced in determining a factual issue, i.e. whether the alleged acts have been proven beyond and to the exclusion of a reasonable doubt. Describing the extremes of sentence possible - in either direction - might in actually influence a jury to , say, convict of a higher inclusive offense to insure a more significant penalty. Would you prefer that? Or is is your argument only to inform jurors of a minimum mandatory but to keep them in the dark about a possible minimum sentence available to the judge?

    And as for informing jurors of a statute in its entirety, very often criminal statutes describe the elements of of a particular crime, but refer to a statutory standard of sentencing for the actual penalty. The potential sentence is in fact not contained within the statute, for example, for sale and possession of a controlled substance, or burglary (depending on jurisdiction). A jury could be (and may very well be) informed of the complete criminal statute and still be unaware of sentencing guidelines, since the sentence is contained within a completely separate statute that is not the subject of jury decisions.

    And, yes, every defendant in a criminal trial is entitled to the presumption of innocence. If the prosecutors and cops can't prove the case to the standard above, the defendant walks.

    What is being described here, though, is a situation where a jury might decide as proven fact that a defendant committed the elements of a crime but they might also decide that the penalties required by law are unsuitable, so the jury disregards the factual determination and votes for acquittal.  That would be a violation of the oath every juror in every criminal court in this country swears to abide by before being seated.

    Again, with respect to all involved, it is not within the purview of Judge Weinstein to, on his own, chose to invalidate an act of the legislative body of his state. That's really the issue described by the OP. A mechanism exists to do exactly that invalidation - by vote of the citizens or on constitutional grounds by an appellate court. Judge Weinstein is, in fact, trying an end run around these procedures by inviting jury nullification. Opening that door is to invite mischief that can also someday be used to allow jurors to consider non-factual issues to convict, not acquit, defendants.


    I have never practiced criminal law but on (none / 0) (#9)
    by FLVoter on Tue Apr 08, 2008 at 08:31:51 AM EST
    occaission have assisted friends of mine that are criminal defense attorneys and have served for many years as guardian ad litem in cases involving children (My chosen pro bono). My small practical exposure leads me to say that I am against mandatory minimums. No two defendants are the same.  Judges should have the freedom to weigh the factors of each case and determine sentencing.  But I also live in the real world and know that mandatory minimums will not go away. Therefor, Scribe I agree with you and like your take on this.  

    An explosive mix is brewing (none / 0) (#10)
    by SeeEmDee on Tue Apr 08, 2008 at 09:02:27 AM EST
    And Judge Weinstein has just added the blasting cap.  As Saul has pointed out, this cannot help but force the 'discovery' on the publics' part of jury nullification, for the vast majority of drug cases carry the mandatory minimum curse, one which many Americans have problems with. Particularly when it comes to something like cannabis.

    In a very quiet way, this could lead to the demolition of the DrugWar. With the country becoming ever more economically stressed, the demand for re-allocation of taxpayer funded resources will become louder. It will become increasingly more difficult for drug prohibitionists to justify their actions when Joe Sixpack is looking at a pink slip because his factory job has gone to China and he needs Unemployment.

    (What politician wants to tell his or her constituents that there's no money for Unemployment insurance because they have to use the money to lock up pot-heads?)

    The bills are coming due after the 20 year long orgy of spending on prisons and such. It's time to pay the piper, and he will not be fobbed off any longer. Judge Weinstein's actions are just a symptom of this.

    Jeralyn (none / 0) (#11)
    by AF on Tue Apr 08, 2008 at 09:35:03 AM EST
    Great post.  One nit-pick: The post gives the impression that the McNeely case (where your client got a life sentence for crack based on the sentencing hearing) is still the law.  

    Of course, since 2005, a judge is no longer required to increase a sentence based on evidence not produced at trial.

    cynicism (none / 0) (#12)
    by diogenes on Tue Apr 08, 2008 at 10:52:58 AM EST
    The jury is the finder of fact and determines whether the defendent is guilty or not guilty.  Allowing the jury to know whether a "manditory minimum" applies (if guilty) is a purely cynical ploy to promote jury nullification.  Change the mandatory minimum law, if it is bad.  
    Countenancing BAD LAW will come to bite those who believe in the rule of law.  Next someone will say that a nontestifying defendent's prior conviction history should be available to a jury before it begins to deliberate.  And the vast majority of Americans will heartily agree with that, whatever this site might say.

    I think there is a marked difference (none / 0) (#17)
    by herb the verb on Wed Apr 09, 2008 at 07:24:02 AM EST
    between keeping jurors ignorant of facts which are not relevant (such as past convictions), and keeping jurors ignorant of the law the government is charging a defendant with breaking. I would include the penalties as an integral part of the law.

    you say that... (none / 0) (#19)
    by diogenes on Wed Apr 09, 2008 at 05:35:14 PM EST
    You may say there's a difference, but once the taboo of "irrelevant information" is broken, you can be sure that the law and order folks will want past convictions brought in, and the vast majority of the public will agree and pass the necessary laws.

    No Rule of Law left (none / 0) (#22)
    by NMvoiceofreason on Sun Apr 13, 2008 at 08:46:48 PM EST
    With the Bush Maladministration, nothing resembling the Rule of Law exists. Laws are broken but cannot even be indicted, because this part of the government won't work for that part of the government despite the SHALL command in the Constitution. Laws, treaties and covenants are ignored, debased, defiled. Speedy trial? Maybe in twenty years. Public trial? Never. Probable cause? We accused you, that's enough.

    You are the mechanics on some Rube Goldberg criminal law contraption, trying to fix the toaster so that the bird will grab it to sit on the pump lever to ... ("The pump doesn't work cause the vandals stole the handles") ... (on and on and on).

    The rule of law and civilization existed for thousands of years, reaching their peak in the decendants of the Magna Carta, such as Habeas Corpus, history will show, ...

    Oh wait. No Habeas anymore. With nod to Gilda Radner - "Never mind".


    ALL the facts (none / 0) (#20)
    by Saul on Thu Apr 10, 2008 at 09:36:03 AM EST
    shown in the trial have to also include all the facts associated with the severity of the crime and that includes knowing the law that was broken, and what the penalties are for breaking the law.  A fully informed injury is what you want.  I think its absurd that the petite jury who is the ULTIMATE trier of the facts has to be told on one hand the severe importance of their decision yet  on the other hand are told we are not going to let you know everything you need to know  in order to make that severe important decision.  As a jurist I feel I am the most important person in the process.  More important than, the prosecutors, the defense lawyer and the presiding judge. Since I am gong to decide on the guilt or non guilt of the defendant, I want to know everything concerning the crime not just the facts discussed in the trial. If I did not have ALL the facts I would feel terrible if I knew my decision sent a guy to life imprisonment because this was his third strike  but that last strike was because he stole some bubble gum from a convenient store.  I am sorry but when I go into that deliberation room to decides one's fate I am God and I better have ALL the facts and I also do not need to answer to anyone on how I arrived at my decision.

    Jurist are more intelligent than they are given credit for yet they are constantly intimidated by the process into succumbing them into robots. If jurist were given more respect and treated with the importance they claim to have they would make more intelligent decisions.  Just because you are a judge or a lawyer does not make you more qualified to interpret the law.  How many bad laws have judges ruled on knowing they were bad laws.  I give kudos to Jude Weinstein for his thinking on this topic.  We warehouse more prisoners than all the other countries combined. A large percentage of those imprisoned should not even be there but are only there because some jury did not have ALL the facts.