Wednesday, February 19, 2014

Dear Prospective Jurors

I know it's got to be hard to be a juror, feeling like you're not getting the whole story from anyone. There are types of evidence you don't get to here. It all makes sense once you have enough time and centuries of law to help figure it out, but at first blush, it's got to seem odd that we keep some things from you.

And then there's the law. We try with jury instructions, we really do. But they're hard to write in any sort of clear, easily readable way. I've often thought that for a juror, trying to understand jury instructions must be a bit like watching the movie adaptation without having read the book. Those viewers who have read the books (the lawyers) understand all the backstory, the nuance, why the phrases are just the way they are, and, most importantly, which instructions were left out.

I can't preemptively try to explain all of what might come up in a trial, what all the instructions mean. But there is one thing that no jury will ever hear in a courtroom but that every jury has the absolute right to do. All juries have the absolute right to engage in jury nullification.

Any jury in this country is allowed to return a verdict of not guilty no matter what the evidence is. Even if the state proves its case in spades, the jury can still decline to convict. Now, in the interest of public safety, I don't really want juries declining to convict murderers on the theory that some people just need killin'.

I'm more talking about the kinds of ridiculous things that shouldn't ever have been charged as crimes in the first place, the kinds of cases that are unnecessarily cluttering our courts, taking up the precious time of public defenders, and wasting taxpayer dollars. Stupid squabbles between grown adults. A person possessing an empty baggie that has trace amounts of cocaine. An offender required to register (offenders have to register for all sorts of piddly crap these days) who made a good faith effort but failed to fill out the form exactly right.

Jurors have the right to say no. They have the right to say, "This is stupid and thank you oh so much, prosecutor, for wasting my time with it." It's your government after all, right? Jury nullification is the ultimate democratic tool the people have for influencing crime and punishment policy. Jurors have the right to tell a district attorney's office if they disapprove of the way that office is allocating its resources. Jurors have the right to make this point one verdict at a time. But no court in the country will ever tell a jury it can nullify. Defense attorneys will try to let a jury know, try to slip the concept into closing argument, but it's usually not enough.

Prospective jurors need to know about this option before they even get into the jury room. If you are on a jury and you all get back into the jury room to begin deliberations, all of you shaking your heads and wondering why on earth a prosecutor wasted your time with this nonsense, tell your fellow jurors about jury nullification. You don't have to convict if you don't want to, no matter what the evidence says. And you're not violating the law one bit.

So nullify away.

(Just maybe not for the really bad crimes.)

- Posted using BlogPress from my iPad

Tuesday, February 11, 2014

Baby steps are better than nothing

The death penalty is quite simply the worst thing we as a people do. It is the most intentional, premeditated, pointless of killings. It is costly and unnecessary. It confuses vengeance with justice. It brings out the very worst in people.

My dream for my life is to see the end of the death penalty in this country. Sometimes, that dream feels very far away. It has certainly seemed very far of late, as all the news is from states desperate to speed up the process, find ways around drug shortages, do whatever it takes to get down to killing already.

I'll take any little scrap of good news I can get. Today brought this from the state of Washington. Governor John Inslee let it be known that there would be no executions on his watch. “During my term we will not be executing people.”

It's not a terribly big step, when you think about it. He didn't clear Washington's death row, a la the now-disgraced-but-always-a-hero-to-me former governor of Illinois. He didn't introduce a repeal bill. But he did say he's not sure about this punishment. He did take the pressure off Washington's defenders a bit. And he did say maybe Washingtonians should have a discussion about whether this is really the right policy for their state.

I guarantee you that the death penalty defense bar in that state is having a better night tonight than their compatriots in any other death penalty state. Kinda wish I were in Seattle tonight.

Monday, February 10, 2014

No Divorce For You!

Kansas seems bound and determined to make the news lately, but never for anything good. (Except for basketball. Our basketball is pretty darn good.) We've got crazy fights-to-the-death between our legislature and our courts. We've got a Senator who so desperately needs to reconnect with a state he's barely set foot in, his story made the New York Times.

And now we've got this. A state representative has penned a bill that would eliminate no-fault divorce and return our state to the bygone era of contested divorce, where one desperate-to-hold-on spouse can hold the ready-to-move-on spouse hostage in lengthy trials, where the spouses have to air all of the dirty reasons why the marriage just doesn't work for both of them, where property settlement can't even begin to happen until the couple has lived apart for at least a year ('cause that can happen in this economy). The originally stated goal was to remove "incompatibility" (the new "irreconcilable differences") from the possible reasons why a person can file for divorce. Per the legislator who wrote it, people shouldn't get an "easy out" from marriage; they should have to work at it.

There are so many problems with this, I don't even know where to start. This lunatic legislator, John Bradford of Lansing (not my representative) seems to have no concept of why no-fault divorce became the predominant approach to divorce in every state. (For a long time, New York held out, but they finally joined the modern era in 2010.)

Prior to no-fault divorce, a couple who somewhat amicably wanted to divorce had to jump through all sorts of absurd hoops to make that happen. An honorable man who actually spend the night in a hotel with a female escort so the wife could make a claim of adultery, just as one example. Spouses who were battered couldn't get out easily; they had to publicly accuse the abusive spouse, thus endangering themselves further, before they could hope to get out. Just think how much better the women of Downton Abbey would have it if they lived in an era of no-fault divorce. Mr. Bates could have just divorced that crazy Vera before she could commit suicide and frame him for her murder, thus robbing her of his supposed motive. Michael Gregson wouldn't have had to move to Germany to get divorced from his institutionalized wife. Jane Eyre and that lump Mr. Rochester would have benefited, too.

Divorce trials are ugly. They're expensive. They're hard on the kids. They're something that sensible people desperately want to avoid. But a broken marriage isn't something people should be forced to live in, either. Sometimes, ending a marriage really is the best thing for everyone. Far better for kids to have separated parents who are happy than married parents who hate each other and their miserable lives. It's not family friendly, economically-wise, or embracing a "culture of life" to put families through a contested divorce. There are sound policy and safety reasons why contested divorces have become a thing of the past.

I finally found the text of the bill. First thing I noticed was that while the author insists adultery remains a ground for divorce, this bill requires that the respondent not just have committed adultery, but that s/he was convicted of adultery under the criminal code. So this bill would effectively eliminate contested divorce where the problem is adultery. Because no one ever, ever gets prosecuted for adultery! As a taxpayer, I would get pretty up in arms about it if prosecutorial and investigative resources all of a sudden had to be devoted to convicting cheating rats when the dirtbag who burglarized my home has still not been identified.

I can't imagine that this bill has a real chance of passage. Too many people see the lunacy of making divorce harder to get. Families would be stuck living in limbo. Courts would be clogged with trials that previously wouldn't have been necessary. Spouses seeking a divorce would actually be required to prove to the satisfaction of a district court judge (and then appellate judges on review) that they met one of the limited statutory bases for divorce. Passing this bill would be expensive, intrusive, and regressive. (Wait a minute, this is Kansas. Passing bills that are expensive, intrusive, and regressive is the official state pastime!)

If Mr. Bradford really wants there to be fewer divorces in the great state of Kansas, I would humbly suggest he consider another option. Encourage less marriage.

Saturday, February 8, 2014

Michigan GOP: Gays Oughta be Purged?

Homosexuality Derangement Syndrome continues. The Michigan Republican Party needs to elect a new woman to sit on the Republican National Committee. Three women are said to be in contention. One of them has said she wants gays "purged" from the GOP. Because those perverted gays (being used by Satan to kill the GOP and have his way on this earth) are an affront to God and don't belong among the good Christians who make up the GOP.

Side note: someone might want to point out to this woman that using language like "purging" in reference to undesirable people lends itself to some unfortunate comparisons...

Apparently, there is real concern that the two normal women running will cancel each other out and this ranting woman will win. Seriously, go read this rant. It's so poorly written and formatted, it's almost impossible to tell what she's really saying. And yet this might be Michigan's official face of the Republican Party. It's horrifying in and of itself, regardless of the particular views expressed, that a woman so incapable of making a coherent point and engaging in public dialogue might have such a significant role in national level politics.

But what I really want to ask, and not for the first time, is why on earth are so many people so stinkin' focused on this one sin*? Why is it so unacceptable to have homosexuals in the GOP, but adulterers, fornicators, liars, thieves, etc. are welcomed without question? Why is allowing gay people to live without fear of discrimination tearing apart the very fabric of society but speaking out against greed is a downright unAmerican attack on capitalism that amounts to class warfare?

It has never made any sense to me that this one "sin*" is the bad one, the one to be singled out, focused on, treated differently. We can't possibly shun all the sinners (doesn't Christian theology say we're all sinners?), but it's ok to shun this one type of sinner.

I call BS on that. No, I call shenanigans. Is it possibly because calling out other classes of sin, other types of sinners, just might hit too close to home? It's the "safe" sin to single out because it's the one sin so many of these people will never be suspected of. They get to thump their chests and their Bibles and feel self-righteous knowing it won't come back on them, even if they get caught cheating on a spouse or a tax return.

That's gotta be it. They can't ALL be wrestling with sexual feelings they're not comfortable with.

*Recognize that I reject the idea that being gay or having gay thoughts or engaging in gay sex is in any way a sin, a civil wrong, a criminal act, or a bad thing. I'm just using the word this particular woman would use.
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