No Law For The Wicked

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“Injustice anywhere is a threat to justice everywhere.” – Dr. Martin Luther King, Jr.

A Fayette County man is acquitted of a battery charge after spitting on a member of the controversial organization tha tcame to West Virginia to demonstrate during the days following the Upper Big Branch Mine Explosion.

The jury in Charleston Municipal Court found Billy Spade of Hico not-guilty of the charge. Spade was arrested when he spit tobacco juice on a member of the Westboro Baptist Church. The inflammatory organization was protesting in downtown Charleston and holding signs reading, “Thank God for Dead Miners.” Another sign, which Spade testified was particularly offensive to him, read “Thank God for Dead Marines.”

The group is gained notoriety nationally for showing up to demonstrate during the funerals of military members killed in action. The church is vehemently anti-gay, anti-Catholic, and anti-Semitic. Their protest April 11, 2010 –six days after UBB — was staged in downtown Charleston outside Charleston Catholic High School and a Catholic elementary school.

An officer assigned to patrol the event witnessed Spade spitting and arrested him. The officer testified he saw Spade spit on the woman’s chest. Spade told jurors he spit on her sign which she was holding above her shoulders.

Charleston Police Sgt. Nick Null testified as he was leading Spade away, the victim Shirley Phelps-Roper said, “I’m glad you pigs finally did something,”

Phelps-Roper is the daughter of the church’s controversial pastor Fred Phelps.

The jury ruled in the case that Spade committed no crime when he spit on the woman, under the highly charged circumstances. The jury returned its not-guilty verdict in less than an hour.

What this report describes is jury nullification – a decision by the jury that the law does not apply to a particular set of facts. A jury does not “rule” in a case. A jury merely returns a verdict of “guilty” or “not guilty”. The prevalent thinking on the issue of juries is that juries have no power of nullification, that is, they do not decide the law. Juries are supposed to only decide whether or not the person committed the act of which they are accused. In practice, jury nullification may be more common than many legal scholars would like to believe.

However, I don’t believe that the reporter in this case has sufficient access to facts on which to base the claim that the jury ruled that the defendant committed no crime. But there are a lot of missing details here. The jury may have simply decided that there wasn’t sufficient evidence to convict. The law may have been written in such a way as to allow for the alleged facts to be considered provocation. There simply isn’t sufficient detail to conclude that this was, in fact, jury nullification, as the report would lead you to believe.

Why is jury nullification important? Well, a couple of reasons. Jury nullification was considered to be a defense of the people against the government, especially a distant government (because juries are drawn from the locality). In this sense, jury nullification may actually be sensible in federal cases. In local matters, though, jury nullification would arbitrarily enforce the law, with this case possibly being an example of that. In short, justice would no longer be blind because the jury would decide who deserves justice and who doesn’t. Think of how a community divided by racism would likely see juries make the law into a completely dysfunctional instrument. The administration of law should be based on what a person does, not who a person is.

Justice should not be a popularity contest:

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About JohnJ

Law student, currently studying for the Illinois bar exam. Iraq vet.

18 Responses to No Law For The Wicked

  1. JohnJ says:

    Darn. The video didn’t show up. I had tried to include a clip from “A Man for All Seasons” discussing why the devil should be given the protection of the law.

  2. DataShade says:

    Assertion: the Westboro Baptists are trolls. They intend to foment disorder, not discourse, then sue individual participants or, failing that, the municipalities in which their ‘protests’ take place. They are trolling, using the justice system as a business model.

    The only way to beat a troll is to ignore it – “don’t feed the trolls” – and hope it goes away. Surely, though, we can be more proactive than that?

    Is placing the health and safety of your organization’s members – creating chaos and hoping one of them gets hurt so you can sue – a crime? Surely the WBC has been in enough of these scuffles that, by now, the various cities and towns can start denying these folks permits for the right of assembly unless they provide assurances that they will provide their own security, right? So why didn’t this town? Is it possible the town leaders just weren’t informed? Individuals who, with malice aforethought, commit acts designed to endanger a community or persons therein, and who plan to elude responsibility by exploiting the holes in the letter of the law, are (and I’m sure I’m not alone in this opinion) are prime candidates for a justice system where the final assignation of guilt is in the hands of a not-quite-impartial, all-too-human, jury of one’s peers.

    I’m not comfortable with the idea of jury nullification in cases of racism, etc, but you’re a fool if you think it hasn’t already happened; JN is already a tool of “the enemy,” it’s already used to subvert order and justice. I’ll not lose sleep if it happened here.

    • JohnJ says:

      I’m pretty sure the WBC are pros when it comes to navigating the permit process. I’m not aware of any major legal settlements in their favor, but Wikipedia says they got a couple hundred thou in the 1990s. And, of course, the Supreme Court struck down a $5M dollar verdict against them on the grounds that their speech wasn’t sufficiently hateful enough to qualify as hate speech.

      Don’t get me started on first amendment stuff. Most people don’t realize that there are already so many exceptions to the first amendment that it doesn’t mean much any more anyways. There’s hate speech, incitement, slander, pornography, canvassing, conspiracy, intellectual property, and time, place, and manner restrictions. But at least the Phelps gang and crush videos are protected.

      Most judges really don’t like jury nullification, and will ensure that the jury is clearly instructed as to their proper role. And most juries actually try to do their best to follow their instructions. But there’s always the temptation of power. There are always situations where we want to bend the rules to get the “right” outcome. But once we accept bending the rules to do what we want, we implicitly condone others bending the rules to get what they want. And “they” are never as principled as “we” are.

    • foxfire says:

      Chalk me up as another vote for WBC being trolls. They have a front that looks like a hard core religious organization, but at the end of the day, all their protests are just a vessal for generating outrage which generates reactions. The reactions let them sue for $$$. At the end of the day, I don’t think they are willing to die for what they believe in.

      • JohnJ says:

        That may be, but just as the law is no respecter of persons, neither should it disrespect anyone. Let me explain what that’s supposed to mean.

        The law is supposed to treat everyone equally. Law is supposed to target action, and not individuals. In other words, the law punishes people for what they do, not who they are. In theory, at least.

        In practice, well…

        And that was my point.

        This is, I think, important, but for reasons I would have difficulty summarizing well. I hate rereading this post because I swear the writing gets worse every time I read it.

  3. Phanatic says:

    “In local matters, though, jury nullification would arbitrarily enforce the law”

    That doesn’t follow. They might be selectively enforcing the law, but that doesn’t mean they’re doing so on an arbitrary basis.

    I’d even say that they’re not selectively enforcing the law. They’re standing in judgement of the *application* of the law. To suggest that that’s some sort of affront to the process, that it’s arbitrary or capricious, strikes me as somewhat silly: *even if* it were arbitrary and capricious, couldn’t you make the same point about police officers who choose to give written or verbal warnings to a subset of the people they pull over, rather than uniformly writing them citations? Or about prosecutors who sometimes drop charges or offer plea bargains instead of bringing every case before a jury? If the cops and the attorneys who are part of the process get to be arbitrary in their enforcement of the law, it strikes me as dangerous to say that only they should be able to exercise power capriciously, and that it ought to be denied to the citizenry that serves on juries.

    • JohnJ says:

      Is it theoretically possible that jury nullification wouldn’t arbitrarily enforce the law? Sure, it’s theoretically possible. Is it a reasonable possibility? No. Jury nullification results in arbitrary enforcement of the law because juries not only are composed of lay people who have not studied the law, but also because they have no oversight and no incentive to adhere to the law. Why not bend the rules for the un/popular guy?

      Again, I acknowledged early on that jury nullification has historically been promoted as a protection against a distant-but-overreaching government. There are different justifications for jury nullification in cases of distant government and local government.

      “If the cops and the attorneys who are part of the process get to be arbitrary in their enforcement of the law, it strikes me as dangerous to say that only they should be able to exercise power capriciously, and that it ought to be denied to the citizenry that serves on juries.”

      1. Nobody says that cops and attorneys should be able to exercise power capriciously. (I agree that they do, but nobody says that they should.) 2. I disagree that giving juries the ability to exercise power capriciously is the best defense. I think that just promotes anarchy. I prefer limiting the ability of cops and attorneys to act capriciously.

  4. Phanatic says:

    “. Jury nullification results in arbitrary enforcement of the law because juries not only are composed of lay people who have not studied the law”

    If the law, as opposed to good outcomes, is so critically important that we can’t trust lay people who have not studied the law to make non-arbitrary decisions about it, than you’re not making an argument against jury nullification, you’re making an argument for requiring that juries by composed of trained professionals instead of people drawn randomly from a pool of eligible citizens.

    Jury deliberations are secret, and each member of the jury makes a decision of conscience. What specifically are you suggesting as a way to prevent jurors from making a decision with “no oversight” and “no incentive to adhere to the law”? Recording all deliberations for later review by a judge, with a potential criminal charge if they disobey the judge’s instructions? Allowing attorneys for the defense and prosecution to be in the room with the jurors? Even if the jury *isn’t* voting to aquit by nullification, they’re *still* reaching that decision with no oversight, no incentive to adhere to the law (other than their own consciences), and no benefit of professional study of the law.

    If those conditions equate to arbitrary enforcement of the law, then the law is being enforced on an arbitrary basis, whether the jury renders a guilty verdict or an acquittal. Whether they’re acquitting by nullification or not is orthogonal to your objections about arbitrary enforcement of the law.

  5. JohnJ says:

    “you’re making an argument for requiring that juries by composed of trained professionals instead of people drawn randomly from a pool of eligible citizens. ”

    You mean, like, a judge? That’s a great idea. And then we would only need one of them.

    “What specifically are you suggesting as a way to prevent jurors from making a decision with “no oversight” and “no incentive to adhere to the law”?”

    I’m not advocating changing the current system, which is that judges remind juries that their job is simply to determine whether or not the accused committed the acts of which he is accused, and not whether those acts should be illegal.

    “Whether they’re acquitting by nullification or not is orthogonal to your objections about arbitrary enforcement of the law.”

    Honestly, I don’t know where to begin. I started this post by pointing out that not only did the reporter imply that the jury nullified the law, something that they’re not supposed to do, but that the reporter didn’t even establish that that’s what happened, and probably can’t establish it since there’s really no way to know. In order to do that, I had to explain what jury nullification is. I certainly left plenty of room for debate for people on both sides of it.

    But your last objection honestly leaves me floored. Law is not EITHER arbitrary OR not arbitrary. Totally arbitrary law is a contradiction in terms. And completely non-arbitrary law is an unrealized theoretical ideal. Reality falls somewhere in the middle. As people who care about our fellow citizens, we all strive to do what we can to improve the world we live in. That includes suggesting improvements to the flawed system we support, even though our suggestions will inevitably result in something less than utopia.

    Jury nullification does not improve a democratic system (Oh, god, I’m never going to hear the end of this) beset by arbitrariness from police, lawyers, and judges. Even given the limited amount of arbitrary power that each of those classes of individuals wield, educating people about the proper role of the jury still achieves good ends by reducing total arbitrariness in the system.

    • Phanatic says:

      “You mean, like, a judge? That’s a great idea. And then we would only need one of them. ”

      We’d also sort of need to need to amend various state constitutions to do away with that pesky right-to-be-tried-by-a-jury-of-ones’-peers, but what’s a few broken eggs when it comes to making a law omelette?

      (And actually, I don’t mean like a judge: I mean a body with the same task as present-day jurors, but composed of trained professionals rather than random eligible citizens.)

      “But your last objection honestly leaves me floored. Law is not EITHER arbitrary OR not arbitrary. Totally arbitrary law is a contradiction in terms. ”

      I think you have entirely missed my point, and I apologize for that because I thought I was very specific in explaining it. I will try again.

      You have stated that jury nullification leads to arbitrary enforcement of the law, because juries are lay people, not trained legal professionals, and that when they vote for an aquittal by nullifcation, they have done so on an untrained, arbitrary basis. They’ve voted based on their conscience, not based on the law, and that’s Bad.

      My point is that if you’re correct, and the vote to nullify is one that occurs because of the lack of legal knowledge amongst the laiety, then votes to convict (or votes to acquit because a juror feels that the state didn’t prove its case) are every bit as arbitrary. Why are you only concerned when someone is set free because of a not-legally-trained conscience of a juror, but not when that same exact juror votes to convict?

      In still other words, you suggest that if a jury votes to acquit a guy accused of spitting on a WBC member because it doesn’t like the WBC, that’s nullification, it’s arbitrary. But what if a WBC member spits on a member of the public, and the state charges the WBC member, and the jury votes to convict *because it doesn’t like the WBC*? That’s not nullification, it’s *conviction*, but it’s every bit as arbitrary as the acquittal would be, right? If so, then your problem isn’t with nullification, it’s *with the system whereby legal verdicts are rendered by juries*.

      “Oh, god, I’m never going to hear the end of this”

      You’re right, you’re not. You’re seriously going to have to concoct a better argument on how the United States was *not* improved by juries refusing to convict people under the Fugitive Slave Act of 1850.

      I think part of your problem is your persistence in labeling reasoned conclusions arrived at through deliberate examination of ones’ conscience as “arbitrary.” Juries that vote to nullify aren’t basing their decision to do so on the flip of a coin, or some capricious whim which would be deserving of the term. They are doing so based on *reason*, and while you might disagree with that reason in a particular case, that does not mean the decision is arbitrary. Northern juries asked to bring convictions of people who helped slaves to escape from bondage weren’t refusing to do so arbitrarily, they were doing so based on sincere moral examination and conclusion *that people should not be enslaved*. That that sort of thing can happen is a feature of the system, not a bug.

      “educating people about the proper role of the jury”

      It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy.

      That’s John Jay, educating the jury as to its proper role in Georgia v. Brailsford. I sort of think he knew what he was talking about.

    • foxfire says:

      “You mean, like, a judge? That’s a great idea. And then we would only need one of them. ”

      Great idea. It is so much easier to buy off/intimidate one person who is directly and obviously connects to the case than to track 12 randomly selected people and buy/intimidate them off.

      The whole point of the jury system is to distribute the power of the law among a group. This makes it more random yes, but it also makes it more tamper proof.

  6. JohnJ says:

    “We’d also sort of need to need to amend various state constitutions to do away with that pesky right-to-be-tried-by-a-jury-of-ones’-peers, but what’s a few broken eggs when it comes to making a law omelette?

    (And actually, I don’t mean like a judge: I mean a body with the same task as present-day jurors, but composed of trained professionals rather than random eligible citizens.)”

    I must point out that these are completely contradictory statements. A “jury of ones’ peers” is not “composed of trained professionals”, unless, of course, one is a trained professional jurist.

    Further, I also want to point out that I’ve not advocated abolishing the jury system, so there’s no amending of constitutions to be had on my side.

    “You have stated that jury nullification leads to arbitrary enforcement of the law, because juries are lay people, not trained legal professionals, and that when they vote for an aquittal by nullifcation, they have done so on an untrained, arbitrary basis. ”

    In fact, what I said was, “because juries not only are composed of lay people who have not studied the law, but also because they have no oversight and no incentive to adhere to the law.”

    “Why are you only concerned when someone is set free because of a not-legally-trained conscience of a juror, but not when that same exact juror votes to convict?”

    This is actually an excellent point, and if you go back and read what I’ve written you will find that I’ve alluded to juries who will convict just because they don’t like the guy. Indeed, the very video in the post has someone defending the right of the Devil himself to be protected by law. This is a great example of why juries should be clearly instructed that their job is not to make legal decisions, but only to make factual findings.

    I’ll reiterate for the Nth time that jury nullification has a long and storied history of being defended as a check on an overreaching government.

    “If so, then your problem isn’t with nullification, it’s *with the system whereby legal verdicts are rendered by juries*.”

    You’re right, that is actually what I’ve been addressing.

    “You’re seriously going to have to concoct a better argument on how the United States was *not* improved by juries refusing to convict people under the Fugitive Slave Act of 1850.”

    This is just silly. I could use the same argument regarding how juries have nullified verdicts against criminals we’d prefer were prosecuted. If you feel the need to appeal to emotion, consider jury nullification of verdicts against the violators of the civil rights of the descendants of those slaves. Or do you believe that acquitting those who lynched blacks is worth the price? (See? I told you this was a silly way to debate.)

    “That that sort of thing can happen is a feature of the system, not a bug. ”

    I think part of your problem is that you ignore the downside. If you look at the bigger picture, you will see that the cost far outweighs the benefit. (Bearing in mind that I have repeatedly differentiated between jury nullification in local cases and jury nullification in distant government cases. The fugitive slave laws you referenced were federal, in the case of any nullification by jury. As I’ve stated over and over, there is certainly an argument to be had on that side, and you’ve made it well.)

    The debate certainly has a long history, with intelligent and admirable people on both sides.

    @Foxfire Yes, the jury system actually came about as the result of central powers seeking to stretch their will over vast distances. We could have a long and thorough discussion about the history of imperialism. But I don’t really want to have that long conversation, so I’m just going to say that it’s a little more complicated than that. When a town is enforcing its own law, it doesn’t need to defend itself against an imperial power.

    • foxfire says:

      That wasn’t my point. My point was simple. It is easier to compromise one person that it is to compromise 12 people.

      Buying off a single person is effectively a comsparicy of 2, it is possible to keep that under wraps.

      Buying off a group of 12 people is a comspiracy of 13. The more people involved, they less likely it is to stay secret.

  7. JohnJ says:

    “It is easier to compromise one person that it is to compromise 12 people.”

    In that case, it would seem that the ideal solution would be to grant all individuals equal authority of law. Instead of juries, we could simply ask everyone what they thought the law should be.

  8. CubaLibre says:

    The availability of nullification is a simple necessity. Unless you want to do away with juries (not at all impossible even within a liberal due process context – see inquisitorial legal regimes in e.g. continental Europe), they have the final say on acquittals, which means by necessity that they will be able to acquit on a whim, i.e. to nullify. If you remove their ability to acquit on a whim you relocate the final say to some other place, and give whoever that is the power to nullify. The buck stops with someone, eventually. If you want to make an argument that the buck shouldn’t stop with the jury in state cases, go ahead, but you don’t seem to actually make any such suggestions; in fact, you insist that you want to see no change in the jury system. So I actually have no idea what it is you’re advocating. Stronger instructions? “Now, you’re supposed to apply the law as I’ve told it to you, and not just do whatever you want, and I’m REALLY REALLY serious about this, ok? Like totally serious you guys, you don’t even know.”

    • JohnJ says:

      I don’t disagree with you. I just want to point out, again, that the original point of the post was the misconstruing of the jury verdict in this particular case and why that’s important. There are thoughtful and decent arguments on all sides of the issue, and obviously there are at least several readers who recognize that it is important for one reason or another.

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