Gideon's Blog

In direct contravention of my wife's explicit instructions, herewith I inaugurate my first blog. Long may it prosper.

For some reason, I think I have something to say to you. You think you have something to say to me? Email me at: gideonsblogger -at- yahoo -dot- com

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Monday, March 18, 2002
Another excellent piece on the Yates trial, this one from Chris Caldwell at the Weekly Standard. Digest of Caldwell's argument: the jury effectively nullified the law because they wanted to come to a "guilty but insane" verdict, and such a verdict is not allowed for by Texas law. Caldwell does a fine job of demolishing Yates's feminist defenders, and a good case as well against the traditional insanity plea and for a verdict of guilty but insane. Where he muddles things - only slightly - is in his description of jury nullification. Properly understood, jury nullification happens when a jury refuses to apply the law as written because it is unjust; the jury, instead, makes new law that it views as more just. This notion of the powers of the jury, while far from universally accepted (the legal profession condemns it strongly, and has for decades) has a very long history in Western political thought, and in American practice. But I think Caldwell mischaracterizes this controversial practice. He says that jury nullification is reasoning backwards from a conclusion in a particular case - deciding what outcome you want for a particular defendant and then coming to the necessary verdict. But this is not properly jury nullification; it is transparent injustice. For example, if a jury were to acquit a defendant accused of murdering his ex-wife and a friend of hers who happened to be with her at the time, not because the jury genuinely thought the defendant was innocent of the murder, nor because they sought to nullify the law against murder, but because the jury lacked sympathy for the victim because of her race and had sympathy with the defendant because of his, that would be injustice, a flagrant violation of the jury's sacred trust and an act that deeply compromises the jury system as a whole. (I'm of course making up such a trial, which would be unthinkable in our day in America.) By contrast, if a jury, unsympathetic with laws against possession of marijuana, were to refuse to convict a clearly guilty defendant with no history of lawbreaking in a trial where neither violence nor trafficking in the drug was alleged, that would be an instance of nullification. The jury is not clearly demonstrating bias toward the defendant, but is overturning an unjust law. The action may be illegitimate, but no more obviously so than when judges strike down laws based on legal theories not clearly rooted in the Constitution's text. (The former may be more legitimate, in that the jury is the people itself acting, and therefore the very basis of the political order; or the latter may be more legitimate, in that judges are ultimately, though not directly, responsive to a political process that represents the people as a whole, and is not merely representative of it. This is an argument for another time, however.) And it undermines the jury system only to the extent that we do not trust the jury system to deal justly - in other words, to the extent that we find a particular instance of nullification to be absurd or indefensible, or to the extent that we already find the jury system to be theoretically indefensible. It seems to me that the Texas jury, in refusing to either allow Andrea Yates to go free or to execute her, committed an act of justice. The Texas legislature, if it concurs, should swiftly pass a law amending the criminal code to eliminate the insanity defense and replace it with the option of a verdict: guilty but insane.