Today will be day two of jury deliberations in the Scooter Libby perjury case. Notice that I didn't write the Valerie Plame identity leak case or anything similar. That's because, after all the investigation, no sufficient evidence that a crime involving revealing her identity was found. In fact, evidence found indicates that there was no crime to be committed as she was no longer a covert agent with a cover to be blown at the time the events under investigation took place.
Why was Scooter Libby tried? I think it is because he has a name that news casters find amusing to say. Repeat, "Scooter Libby, Scooter Libby, Scooter Libby". Admit it, it feels a little silly. Unfortunately the very serious reality is that Mr. Libby could find himself serving 35 years in jail if he is found guilty of... what, exactly? Perjury. He lied to the grand jury investigating Ms. Plame's case or so say the charges against him. The thing is, this isn't perjury in the Bill Clinton "I did not have sex with that woman..." sense where it clearly is or is not a lie. This is perjury in the, "I rented that car on a Thursday," when it actually happened on Wednesday sense. In other words, quite possibly a case of mis-remembering.
Jurors in this country have an unusual and specifically unpublished power. They have the ability to actually take into account the "rightness" of the applicable law or its application in a particular case. This act does not create precedent. In other words, it does not have the power to overturn existing law in general, just for a given case. This power is called Jury Nullification. It has very long precedence going all the way back to English common law which actually has some legal basis in this country in the absence of other governing law. This case seems ripe for its application except the judge is withholding the very facts that might sway the jury to invoke it. Of course no judge in this country even permits Jury Nullification to be introduced to a jury. They all will seek to disbar a lawyer who attempts to inform a jury of the power and will excuse any potential jury member who so much as expresses knowledge of the concept.
The facts the judge has forbidden the jury to consider regard the question of if an underlying crime had been committed. The Judge has specifically forbidden the Jury to speculate on if Valerie Plame actually had her cover blown, or not. Without seeing that, at worst, Mr. Libby's action resulted in no harm, no foul, they have no means to consider if Mr. Libby's crime is worth a potential 35 years in jail, even if it was committed.
Further, his guilt or innocence seems to have come down to a "he said, he said" situation where the "he"'s in question are Scooter Libby and Tim Russert. Do we see a problem here? We should. Tim Russert is not just anyone. He is a newscaster who has appeared before the public many times for many years. It is unlikely that he is not known to the members of the jury. Before this incident, I suspect that very few had ever heard the name, "Scooter Libby." As a news caster, Russert receives immense credibility simply by virtue of his job. We are supposed to trust news casters. Never mind that he is just a person like any other. I don't know how we can expect the jury to leave the realm of subjectivity and trust Libby over Russert. It does not seem reasonable to do so.
Whatever. Maybe today we will obtain some insight into of what reasoning a jury of one's peers are capable. Maybe tomorrow...
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7 comments:
You wrote:
"Jurors in this country have an unusual and specifically unpublished power. They have the ability to actually take into account the "rightness" of the applicable law or its application in a particular case."
One of the first things a Judge tells a jury is the following:
"I instruct you that the law as given by the court in these and other instructions constitute the only law for your guidance. It is your duty to accept and to follow the law as I give it to you even though you may disagree with the law."
So, to say that the jury has the power to nullify is the same as saying your neighbor has the power to kill your barking dog. It's wrong, but there's nothing that you can do about it after the fact.
As to Scooter's guilt, I don't see how he could be found guilty. The court has to prove that he deliberately lied and that's a very, very difficult thing to prove - what thoughts were in the man's head at the time...
However, your "car rental" analogy is somewhat disengenuous. It could be argued (and I'm sure it will) that Libby might have been motivated to deceive in order to protect the Whitehouse... Not obviously an innocent mistake... but impossible to prove, nevertheless
A judge saying it doesn't make it so. Jury nullification is a real and valid concept in law. The issue of it's rightness is very much a matter of debate. If it were clearly wrong, there would be means to prevent it. The prohibition of punishing juries and the protection from double jeopardy are two tenets of our current legal system that support this.
I would argue that juries having that power is not wrong. I find it to be the last check and balance. In most (not all, O.J. Simpson's case comes to mind) of the cases that I am aware where it has been invoked, it was used to right an injustice. I'll likely never sit on a jury :-)
Have a look at Jury Nullification and it's history of application. http://www.fija.org/ is a good place to start. Like any activist site, it has its share of zealotry, but there is a lot of good information, too.
As for the car analogy, I was only pointing out that the statements in question are difficult to prove as lies versus mistakes, not that they were trivial in magnitude.
I ought to add that a Supreme Court ruling in the 60's specifically gave judges the right to instruct juries to simply follow the law. It did not, however, make it mandatory that juries follow the instructions. In fact, it re-affirmed that juries have the right even if exercising it is ill-advised.
I take it, by your replies, that you think jury nullification is a good thing. I do not. I think, in the early days of an immature system of law, it has it's value in the system of checks and balances. However, for a mature legal system where the laws are reviewed and revised with the rigor that they are in the U.S., jury nullification amounts to the few usurping the will of the many.
Note: The key aspect of jury nullification is that the jury agrees that the defendant is guilty of breaking the law but should not be held accountable for his crime OR the jury thinks the defendant is innocent, but find him guilty because he is unpopular.
This creates a system of unfairness... the wealthy or the beautiful or the popular people get away with murder (so to speak), but the poor, the minorities, the unpopular, possibly even the innocent, pay the full price of the law...
The only way that jury nullification can be the right thing to do is when the law is clearly wrong and then the nullification should become precedent that ultimately results in the law being changed.
I disagree with your last statement:
In fact, it re-affirmed that juries have the right even if exercising it is ill-advised.
I do not believe that this is a right. In fact, I believe that it is technically illegal, however it is unlikely that anyone (in modern times) will ever be prosecuted for it since the juror process is protected.
Regarding O.J., I assume you mean that his loss in the civil case was a jury nullification by a group of jurors who thought he was innocent of murder, but found him guilty because he needed to be punished for "something"???
If you read a bit about it, I think you'll find that, historically, Jury Nullification has mostly been used to right wrongs, not the other way around.
It was an established right in the time of the founders, so if it is not a right today, it must have been taken away at some point. When was that?
BTW, Jury Nullification can only be used to find a not guilty verdict.
In O.J.'s case, there are some who feel that his acquittal was a case of Jury Nullification. I don't know enough to be certain myself, but if it was, I think it was a mis-application most probably due to prejudice instead of conscience.
As far as my limited research capability is able, I cannot find any credible reference to jury nullification being a "right". All arguments of constitutionality seem to be centered around the right to trial by jury, NOT the right of the jury to decide the validity of law.
Of course there are cases of grave injustices being righted by acts of jury nullification... likewise serious injustices have been inflicted by jury nullification. Examples of murderous Klan members being acquited by all white, "sympathetic" southern juries stand out in contrast.
"BTW, Jury Nullification can only be used to find a not guilty verdict."
What makes you say this? Jury nullification means a verdict is rendered in contradiction to the law. The law requires evidence to prove beyond a reasonable doubt. How many innocent people do you suppose are in our prisons today not because the evidence was convincing, but because the prosecutor was, or because of the color of their skin, or because the jury suspected them of some other crime, ... and the list goes on...?
O.J. was acquitted because the police involved in collecting and presenting evidence were less credible than the defendant and because they exhibited prejudicial behavior. This was enough to give the jury reasonable doubt.
To be an example of jury nullification, the jury would have had to believe that he was guilty of murder, but decided that the murder was justifiable or that O.J. was exempt from the law due to his celebrity status or something along those lines.
The abuse you write of was not solely accomplished through Jury Nullification, but also through judicial and police misconduct. Ironically, in this context, it was Jury Nullification that led to the acquittal of abolitionists.
What makes you say this? Jury nullification means a verdict is rendered in contradiction to the law.
This is broader than the definition of Jury Nullification, that's what.
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